Protection of Medical Committee Records
and Peer Review in Louisiana
Edward P. Richards
Director, Program in Law, Science, and Public Health
Harvey A. Peltier Professor of Law
Louisiana State University
Baton Rouge, LA 70803-1000
richards@lsu.edu
http://biotech.law.lsu.edu
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Prescription and Peremption
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Did you study these in torts and/or civil procedure
courses?
2
State Institutions
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State Facilities and Open Records
Requests – La RS 44:7
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Exempts medical information held by state
hospitals, prisons, and other institutions
providing care from open records requests
Allows institutions to make rules governing
reasonable access to records for authorized
individuals
Records are available through discovery if the
subject’s medical condition is at issue
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Records of Research Subjects
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La RS 44:7 F
Provides that there will be no release of medical research
information prepared by public institutions, including
universities, doing research under IRB Direction
This includes barring release through discovery
Does not clearly allow the subject to release the info on
themselves to anyone but the researcher
What if you are alleging research misconduct or
malpractice?
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Protection of Peer Review and Peer
Review Records
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Peer Review
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What is peer review?
Why do we let hospitals and physicians do this,
rather than a state agency?
Why is it important that it be done correctly?
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Conflicts in Peer Review
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Physician Conflicts
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What are the possible business relationships
between medical staff members?
 Competitors
 Partners
 Referral Relationships
How do these potentially bias peer review?
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Hospital Conflicts
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Is a bad doc always bad business?
 What are the economics?
Legal Issues
 Independent contractor status gives some
protection to the hospital
 Most malpractice does not result in litigation
 Litigation is in the future
 Capture of the peer review process by docs
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LA RS 13:3715.3. Peer review committee
records; confidentiality
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Committee and peer review records are confidential
Exceptions for med mal cases
 "However, no original record or document, which is
otherwise discoverable, prepared by any person, other
than a member of the peer review committee or the
staff of the peer review committee, may be held
confidential solely because it is the only copy and is in
the possession of a peer review committee. "
What does this mean?  Smith v. Lincoln General Hosp., 605 So.2d 1347 (La.
1992)
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What if the Doc is Contesting the Peer
Review?

"except in any proceedings affecting the hospital
staff privileges of a physician, dentist,
psychologist, or podiatrist, the records forming
the basis of any decision adverse to the
physician, dentist, psychologist, or podiatrist may
be obtained by the physician, dentist,
psychologist, or podiatrist only."
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Protection of Individuals and Institutions
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In the OLOL case, why did the court rule that the hospital
and the physician's corporation were not covered by the
statute?
 What does the current Section B protect?
 How would this change the court's ruling?
What is the standard for immunity in the current Section
B?
 without malice and in the reasonable belief such
action or recommendation is warranted by the facts
known to him.
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Smith v. Our Lady of the Lake Hosp., Inc.,
639 So.2d 730 (La. 1994)
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Dr. Smith
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What triggered the review of Dr. Smith?
 What does this tell you about the medical system and
where the concern for good medicine ranks as a
value?
 Is being an a**hole intrinsically bad for patient care?
 What are other implications of personality driven
disciplinary actions?
Why is Dr. Smith fighting this so hard?
How much money do you think he is spending
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Strategic Litigation
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How is he using his financial power to pressure
the hospital and the committee members?
 Can you use litigation to punish someone even
if you probably cannot win?
 SLAPP Suits
Why are judges hesitant to dismiss cases and
impose sanctions?
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The Federal Action - RICO
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Racketeer Influenced Corrupt Organizations Act
 Conspiracy law based on committing certain
criminal predicate Acts
 More Info
http://biotech.law.lsu.edu/cases/RICO/index.htm
What happened to this claim?
What about the sanctions?
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Federal Health Care Quality Improvement
Act
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Effective after this case
Cases based on this are used as precedent in
OLOL because the standards and policy are the
same
Provides immunity for Federal claims
 Antitrust is most important for private actors
 Limits some constitutional claims against state
actors
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State Claims
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Who is he suing?
What are his state claims?
What actions are these claims based on?
Who was his associate?
How does this affect your opinion of plaintiff?
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Basis for the Limitation of Privileges
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What are the two issues that lead to his privileges
being limited and then terminated?
Who was asked to evaluate the medical care he
delivered?
Why not use the other medical staff members?
Was he given a probation period to clean up his
act?
Was he allowed to present evidence to the
reviewing bodies?
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District Court
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What did the district court do?
Why is this critical to protecting peer review from
intimidation?
Why is litigation a problem for individual
committee members even if the insurer or hospital
is paying the bills?
How is this like defamation standards for news
organizations?
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Appeals Court
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Why did the appeals court reverse?
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LA Supreme Court
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Why does the court analogize the peer review
privilege to the privilege in defamation in suits
arising out of the employer-employee
relationship? [61]
Why is this privilege necessary?
 What has happened to reference checking?
What are the elements of this privilege? [61]
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What is the two step process for deciding
if the privilege exists? [70]
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First, it must be determined whether "the attending
circumstances of a communication occasion a qualified
privilege," which means that a determination must be
made of whether the requirements for invoking the
privilege are satisfied.
The second step of the analysis requires a determination
of whether the privilege was abused, which requires that
the grounds for abuse -- malice or lack of good faith -- be
defined.
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Who decides?
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Does the judge or jury usually decide the second step?
What is the exception?
 While the first step is generally determined by the
court as a matter of law, the second step of
determining abuse of a conditional privilege or malice
is generally a fact question for the jury "unless only
one Conclusion can be drawn from the evidence."
Did the defendant's claims arise out of the peer review
process?
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"with malice or without good faith"
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What if the members of the committee hate the
plaintiff and would be better off if he were out of
business?
What do they have to show to defend their actions
in this situation? [90]
How is this reflected in the standard in the
amended statute?
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Plaintiff's Case
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Why does the court reject the plaintiff's affidavits saying
he was a great surgeon and all around good guy? [106]
What is the evidence that the study of patient injuries was
started without any animus toward plaintiff by
defendants? [107]
 Why was bringing in the Thoracic Surgery Society a
good risk management move?
What standard does the court use to decide if deviations
from the procedure in the bylaws are material? [120]
 Where does this right of due process come from?
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The Ruling
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What was the final ruling?
Who did not get dismissed and why?
What cause of action was not dismissed?
 Why?
 This is also true of the federal law
What sort of proceeding does the court seem to
be treating the peer review process like?
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