Report on Botched Surgery Is Privileged

     CHICAGO (CN) – A federal judge refused to order the release of a peer-reviewed report on a surgery in which doctors cut a woman’s bowel, spilling its contents into her abdomen and causing an infection that killed her five days later.



     Maria Quintana underwent an October 2008 elective total hysterectomy at the Mount Sinai Hospital Center of Chicago.
     “During the surgery, her bowel was lacerated and its contents began leaking into her abdomen,” the court explained. “Five days later, she died from an overwhelming infection.” She is survived by her husband and four children.
     Ms. Quintana’s estate sued the United States under the Federal Torts Claims Act (FTCA), since one of her surgeons, Dr. Maryam Siddiqui, was employed by the government. It also sued Mount Sinai Hospital, various physicians and a physicians’ foundation, Access Community Health Network, for failing to timely diagnose and treat Quintana’s postoperative infection.
     To support its claims, the estate’s administratrix sought discovery of statements made by physicians in peer-review meetings regarding Quintana’s surgery. The defendants refused to produce these documents, however, arguing that the information is privileged.
     U.S. Magistrate Judge Jeffrey Cole denied plaintiff’s motion to compel last week, finding that “the legislatures in every state in the nation have concluded that without a peer review privilege, physicians will be discouraged from participating in the full and frank expression of opinion that is essential if peer review is to fulfill its vital role in advancing the quality of medical care.”
     “Denial of a peer review privilege in FTCA cases would frustrate irretrievably the state legislation that fosters confidential communications thought essential to the achievement of a public good of transcendent importance,” Cole wrote.
     “The policy interests behind the peer review privilege in medical malpractice cases, regardless of the forum in which they are tried, are as substantial as any that can be imagined: ‘Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care,'” Cole added, citing 7th Circuit precedent. “‘To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations.'”
     “The only consequence in not recognizing the privilege is to require the plaintiff in this case to do what plaintiffs in medical malpractice cases are routinely required to do in all other cases, namely adduce proof independent of what occurred in the peer review process,” Cole concluded.

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