Missouri Court confirms that Federal Courts will not recognize state law safety, quality and peer review privileges

The US District Court for the Eastern District of Missouri recently issued an opinion that underscores the potential value of PSO protections. The court's conclusion is succinct and clear: state peer review privilege doesn't apply in federal court.

This opinion not only cites the irrelevance of state protection in federal court but hoists it up on a pedestal. For reasons not outlined in the case, the Movant hospital did not claim the PSO privilege, but the privilege would have applied if they did the work in a PSES and asserted the privilege in court.

The general privilege discussion begins on P. 11 of the opinion, and the specific discussion of the peer review privilege starts at the bottom of P. 12.

Brief background:

• Dr. Ali allegedly did bad things, for which the Department of Justice charged him with fraud, illegal kickbacks, and opioid distribution violations.
• The government sought information generated by the hospital during its investigations, particularly as it related to unnecessary care. (This can be a valid realm of "Patient Safety" work under the PSQIA.)
• The hospital claimed protection under the MO Peer Review Statute. The federal court rejected the applicability of that statute: "Similarly, all Federal appellate courts to consider the issue have held that state peer review privileges do not apply in federal cases."

Boom.

Plaintiffs bring some professional liability cases in federal court. We have to remember that the PSQIA applies in any case to protect PSWP. Cases involving fraud and other federal payment issues, EEOC claims, and civil rights often involve possible PSWP. Many of the published PSQIA cases arose in non-malpractice settings; several of our clients have used the protections in the non-malpractice space. Plaintiffs almost always file those cases in federal court.

Bottom line: Make sure that your PSES includes relevant work in these areas and that your litigation management teams have been advised to claim the privilege.