RECENT DEVELOPMENTS REGARDING CALIFORNIA EVIDENCE CODE SECTION 1157

Section 1157 of the California Evidence Code is vitally important to hospitals in the state. The statute, generally, protects from discovery the records and proceedings of hospital medical staff committees. Its purpose is “to improve the quality of medical care in the hospitals by the use of peer review committees.” (West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 851.) Horvitz & Levy LLP has published a manual and frequent supplements that discuss the scope of the statute’s protections.

A substantial number of California Supreme Court and Court of Appeal opinions over the years have settled many questions regarding the application of section 1157 in state court. The primary remaining uncertainties concern how the statute applies in federal court, if it applies there at all.
The year 2005 saw no new state law relevant to section 1157, but there were some developments in the federal courts. Because of the limited recent activity in the area, Horvitz & Levy is providing this e-bulletin update in place of a manual supplement.

The trend in the federal courts nationwide has been against protecting hospital medical staff committee documents and proceedings. For the most part, the courts have refused either to apply state law protective statutes or to find a federal common law privilege for such materials. Several district courts decisions in California are part of this trend, but the Ninth Circuit Court of Appeals — the court that states the law for all federal courts in California — had not addressed the issue. In 2005, it did address the issue, and followed the nationwide trend, making it more likely that discovery of medical staff committee matters will be permitted in California federal courts.

In a case from Arizona — Agster v. Maricopa County (9th Cir. 2005) 422 F.3d 836, certiorari denied (2005) __ U.S. __ [126 S.Ct. 473, 163 L.Ed.2d 359] — the Ninth Circuit affirmed an order compelling the production of a mortality review conducted by a prison health services agency. The court held that a federal privilege for medical peer review is unwarranted and that federal privilege law (in this case, the lack of a privilege) applies even to state law claims brought in federal court.

The opinion’s reasoning is cursory and subject to counter arguments (discussed in the Horvitz & Levy manual), but, for now, it governs all federal cases in California. Nonetheless, counsel should consider making all available counter arguments to preserve them for possible review by the entire Ninth Circuit or by the United States Supreme Court.

One type of case in which medical staff committee matters should be protected is litigation under the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C.A. § 1395dd). Although any argument based on privilege is unlikely to succeed because of the Agster opinion, a recent decision supports an argument against disclosure based on relevance grounds. In Stringfellow v. Oakwood Hospital and Medical Center (E.D. Mich., Oct. 21, 2005, CV-75188) Opinion on Motion to Compel, a Michigan federal district court denied an EMTALA plaintiff’s motion to compel discovery of peer review documents, concluding that evidence about “[a]ny post-mortem conference” was irrelevant to the EMTALA claim and that the facts pertinent to the claim could be established “by looking at the medical record and taking depositions of the persons on the scene.” (Id. at pp. 8-9.)

For more information on issues related to the confidentiality of peer review records and Evidence Code section 1157, call David S. Ettinger at (818) 995-0800 or send an e-mail to him at dettinger@horvitzlevy.com.

www.horvitzlevy.com

If you do not wish to continue to receive these informational bulletins, please e-mail jpaul@horvitzlevy.com with a subject line "UNSUBSCRIBE."