Confidentiality and Privilege of Peer Review Information: More Imagined Than Real
Case Citation
William Beaumont Hosp. & S. Oakland Anesthesia Assocs., P.C. v. Medtronic, Inc., No. 09-CV-11941, 2010 U.S. Dist. LEXIS 39093, 2010 WL 1626408 (E.D. Mich. Apr. 21, 2010)
Background
According to Defendant, the “central issue” in its motion to compel is its claim that Plaintiffs have waived the peer review privilege. (Def.'s Reply at 3.) Defendant argues that Plaintiffs waived the peer review privilege by affirmatively bringing a contribution action and by involving Defendant in the peer review process. (Def.'s Mot. Br. at 1 1-18.) Plaintiffs argue that Beaumont has not waived the peer review privilege and that Defendant “fails to cite any Michigan case law in support of its argument that a claim for contribution somehow puts protected peer review material ‘at issue’ such that one could find a waiver of the peer review privilege.” (Pls.' Resp. at 8.)
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Nonetheless, the court need not decide whether the peer review privilege is absolute, because even if it could be waived, Plaintiffs have not waived it in this case.
Article Publication Date
1993
Volume
7
Issue
2
Citing Quote
Whether the peer review privilege can be waived is a matter of first impression in Michigan. In some states, there is a statutory provision for waiver of the peer review privilege. See Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined Than Real, 7 J.L & Health 169, 190-92 (1993) (noting that “[m]ost of the states that provide a privilege for peer review information do not provide any way in which the privilege may be waived,” but that six states do have a statutory waiver provision). In states without a statutory waiver provision, courts are split on whether the peer review privilege can be waived.