PROFESSIONAL ISSUES

Court drafts exception to keeping peer reviews closed

In a North Carolina case, federal judges say opening up records so a physician can try to prove discrimination trumps the tradition of keeping records confidential.

By Tanya Albert, AMNews staff. Sept. 10, 2001.

Peer review records shouldn't remain under wraps when a physician claims the committee discriminated against him because of his ethnicity, a federal appeals court ruled in August.

A panel of three 4th U.S. Circuit Court of Appeals judges said a North Carolina hospital must turn over 20 years of peer review records so they can be used by a physician suing the hospital for discrimination.

The judges said Charlotte ob-gyn Ron Virmani, MD, needs the records to try to prove that the hospital's peer review committee did not dish out equally harsh punishments to other doctors under similar circumstances.

It is believed to be the first time a federal circuit court has addressed peer review in the context of discrimination. Courts have usually ruled on cases involving malpractice charges.

"It's groundbreaking," said Clay Culotta, Dr. Virmani's attorney. "It's going to be a very important issue in the medical community."

While some are encouraged by the court ruling, saying that ensuring there's no racial discrimination in the process is more important than keeping the records confidential, others are miffed. They argue that breaking down the walls of the once-sacred peer review process will result in physicians being less honest in peer review committees. That, they say, will ultimately damage quality of care.

With that fear in mind, the hospital asked the full 4th Circuit to look at the panel's decision.

"We continue to work diligently to uphold the peer review process," said Ed Case, Presbyterian Hospital president. "It's our hope that when the full court hears it, they will recognize the importance and agree with us."

The claim

According to court documents, Presbyterian Hospital and Presbyterian Hospital Matthews, part of Novant Health Inc., summarily suspended Dr. Virmani's staff membership and clinical privileges after the hospital reviewed a case in which the ob-gyn punctured a patient's iliac artery during a laparoscopic procedure in 1994.

Dr. Virmani said that that is a known possible complication, according to the documents. Dr. Virmani says his privileges were taken away because of his race and national origin. He was born in India. He came to the United States in 1976 and attended medical school in New Jersey between 1981 and 1985.

He said the hospital treated non-Indian physicians differently and disciplined them less harshly. Dr. Virmani noted that the state medical board did not take action against him and that independent reviewers found that he met the standard of care in the cases the hospital said were problematic.

"Many doctors who have committed much bigger 'errors' have continued to practice there without being subjected to absurdly harsh peer review and/or discipline of any kind," Dr. Virmani wrote in a paper about his experience.

The hospital defended its action and said that the court shouldn't open up the peer review records.

Disclosure prevails, this time

The panel of federal appeal judges recognized that keeping peer review confidential is important, but it said it was more important in this case to open the records, because it was the one way Dr. Virmani could prove discrimination.

"We agree with Novant that the privilege it seeks would serve important interests," the court wrote. "However, as is the case in the academic context, the evidentiary benefit that will be realized by refusing to grant a privilege for medical peer review materials in a discrimination case is potentially great."

The evidence Dr. Virmani seeks is not evidence in the form of a "smoking gun," the court said.

"Such evidence will not come into being in the peer review process only if such disparate treatment ceases to occur," the court said.

S. "Jay" Jayasankar, MD, president of the American Assn. of Physicians of Indian Origin, said the decision was balanced.

"It's not one that is going to scare away everyone from participating in peer review," he said. "I am very happy that it doesn't open the doors for a floodgate for everyone."

The AAPI filed a brief on behalf of Dr. Virmani along with the American College of International Physicians, National Medical Assn. and several other organizations.

On the other side of the argument, the North Carolina Medical Society, North Carolina Hospital Assn., American Medical Association and American Hospital Assn. filed a brief supporting the importance of peer review privilege. The brief did not discuss the merits of Dr. Virmani's claim.

"We're a little concerned about what type of effect this will have on physicians' willingness to participate in peer review," said Melanie Phelps, NCMS associate general counsel.

But, she said, the impact of the limited-scope decision will not be known until after the appeals process is complete.

 ADDITIONAL INFORMATION: 

Ashutosh Ron Virmani, MD, v. Novant Health Inc.

Venue: 4th U.S. Circuit Court of Appeals.
At issue: Whether a physician who claims he faced racial discrimination in the peer review process can have access to 20 years of peer review records to prove his case. A three-judge panel said yes. The hospital has asked the entire court to look at the case.
Potential impact: A decision to open the records could keep the peer review process honest; opening the records could hurt the process and threaten quality of care.