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by malice toward the person subjected to the peer review. Perhaps most important was the Court's broad analysis of what constituted malice. There were several procedural irregularities — deviations from the typical peer-review process. The court ruled that each "of these procedural irregularities is significant and, taken together, they clearly demonstrate that [the hospital] intentionally, and repeatedly, violated its own established procedural safeguards. Because the district court's findings show that [the hospital] repeatedly disregarded several of its own policies without justification in disciplining [the plaintiff], those find- ings are sufficient to support the district court's conclusion that [the hospital] acted willfully in violating its own peer-review procedures. That willfulness is malice." 4 In a nother case, the Minnesota Supreme Court held that peer-review privilege did not preclude patient claims against a hospital for negligence in grant- ing credentials to a bariatric surgeon who had allegedly botched a gastric bypass surgery: "Although the confidentiality provision of Minnesota's peer review statute may make the proof of a common law negligent-credentialing claim more complicated, we conclude that it does not preclude such a claim." 5 The Federal Trump Card Although the Federal Health Care Quality Improvement Act provides immunity for peer reviewers, 6 it does not protect peer- review proceedings from subpoena and discovery. This distinction should support discoverability of peer-review information because it limits adverse effects discovered information might have on individual reviewers. Indeed, Federal courts have generally held in favor of discoverability when peer-review information relates to claims that Federal anti-discrimination laws have been violated. T h e p l a i n t i f f p h y s i c i a n i n Virmani v. Novant Health Inc. was an obstetrician-gynecologist who had staff privileges at a hospital owned by the defendant. 7 After the plaintiff inadvertently punctured a patient's artery during lapa- roscopic surgery, the hospital conducted a review and suspended the physician's staff membership and clinical privileges. The trial court denied a motion to protect the peer-review records from discovery, and the Fourth Circuit Court of Appeals affirmed, citing a U.S. Supreme Court case in which a professor at the University of Pennsylvania claimed she had been denied tenure because of racial and gender discrimination. 8 In University of Pennsylvania v. EEOC, the Supreme Court recognized "that confidentiality is important to the proper functioning of the peer-review process under which many academic institutions operate." It went on, however, to point out that the "costs that ensue from disclosure … constitute only one side of the balance. As Congress has recognized, the costs associated with racial and sexual discrimi- nation in institutions of higher learning are very substantial. Few would deny that ferreting out this kind of invidious discrimination is a great, if not compelling, governmental interest." 9 When a physician brings a claim in federal court, alleging discrimination by an employer medical institution, the employer will not be allowed to hide crucial evidence based on peer review. This will generally allow access to peer-review information related to the doctor and other instances in the past when other physicians have been subject to peer review. If, as a result of the review of this information, the physician develops evidence of "dispa- rate treatment," then a discrimination challenge to the peer-review process can be successful. Lawrence P. Schaefer is the owner and president of Schaefer Halleen LLC. As one of the most recognized plaintiff 's lawyers nationwide, Schaefer has earned the respect of judges and other lawyers for his thorough and aggressive client advocacy in negotiation and litigation. He concentrates his practice on representing medical professionals and other employees who are adversely affected by employment discrimination practices or unfair and unwar- ranted discipline or termination. You can reach Schaefer directly at 612- 294-2601, or Lschaefer@schaeferhalleen.com. ■ References: 1. Minn. Stat. § 145.64 2. Minn. Stat. § 145.63 3. 749 N.W.2d 822 (Minn. Ct. App. 2008) 4. Minn. Stat. § 145.63 5. Larson v. Wasemiller, 738 N.W.2d 300 (Minn. 2007) 6. 42 U.S.C. § 11111 7. 259 F.3d 284 (4th Cir. 2001) 8. University of Pennsylvania v. EEOC, 493 U.S. 182 (1990) 9. Id. at 182 Bert Black, Senior Attorney at Schaefer Halleen LLC M D N E W S . CO M ■ MD NEWS Minnesota | 1 7

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