Court Opens Door to Private Records

The Supreme Court cleared the way Monday for lawyers suing a rural California hospital to obtain the peer review records of a controversial doctor, a development that some say threatens the traditional privacy of such assessments.

Without issuing a ruling, the justices refused to intervene in a closely watched lawsuit against an emergency room doctor in Clear Lake, Calif., who told the parents of a gravely ill infant to drive to another hospital. The child died soon after arriving at the second hospital.

Last year, the physician, Dr. Wolfgang Schug, was acquitted on state criminal charges. However, the child’s parents sued the doctor and his hospital for damages and the case has become a dispute over the value of peer review in hospitals.

Under California law, a hospital’s doctors can meet in private after such an event and talk candidly about what went wrong. Those sessions are confidential, shielded from court orders obtained by outside lawyers. All 50 states have a similar privacy privilege for peer review in hospitals.

But the parents who sued Schug relied on a new federal law that regulates emergency care and was designed to prevent dumping of patients who lack insurance. And last year, a federal judge in San Francisco ruled that the law calls for openness and broad disclosure of information.

“The state privilege does not apply in federal court,” said U.S. District Judge Susan Illston in ordering the Redbud Community Hospital to turn over its peer review files involving Schug.

The California Medical Assn., the California Academy of Family Physicians, the California Health Care Assn. and the American Medical Assn. joined in appealing this first of its kind ruling all the way to the Supreme Court.

“The problem is doctors won’t engage in the unpleasant process of talking about what went wrong if the evidence can be used against them,” said Catherine I. Hanson, a lawyer for the California Medical Assn. “This is a very important issue to the health care community. Peer review is the single thing most likely to improve the quality of care in a hospital. These doctors work there, they know each other, they know the circumstances and the equipment. If there is unexpected death, they can get together, review what happened and take appropriate corrective action.

“Our concern is that people will not be so enthusiastic about doing this if they feel the information will be turned around and used as a sword against them,” Hanson said. “When you talk about the attorney-client privilege, judges understand that. But when you turn to other professions, they seem to see less value in the privilege of confidentiality.”

However, a lawyer for the child’s parents disagreed. “Peer review is a joke. It should be called peer protection because the doctors get together to protect each other,” said Richard J. Massa, a lawyer in Lakeport, Calif. “These people are answerable to no one. It is a secret society for their protection.”

The case began Feb. 23, 1996, when the mother of 11-month-old Cody Burrows brought him to the emergency room of the tiny Redbud hospital. He had an ear infection and Schug prescribed an antibiotic.

Two days later, the parents, Rhoda Thomas and David Burrows, returned with the infant, who was vomiting and had a fever and diarrhea. Schug was the only doctor on duty and he decided to send the family 55 miles away to a Santa Rosa hospital that had a pediatric specialist on duty. The infant went into a coma and died of infection and dehydration.

Massa said that after the child’s death the hospital and its doctors conspired to cover up what happened. “For two years, they have used this peer review privilege to block me from getting documents and depositions,” he said. “This means they now have to turn over all this secret information and I couldn’t be happier.”

Other lawyers cautioned that Monday’s action by the Supreme Court sets no legal precedent and may not even be the court’s last word on the case.

Last year, the U.S. 9th Circuit Court of Appeals refused the hospital’s request to review Judge Illston’s order because the lawsuit was in progress.

Similarly, the Supreme Court usually refuses to review a case until it is complete. In brief orders issued Monday, the justices denied the appeals in the case (Redbud Community Hospital vs. USDC for Northern California, 98-1513 and Schug vs. Burrows, 98-1526).

The court also:

* Further limited the rights of state inmates to appeal in federal court. On a 6-3 vote, the justices said an inmate must first raise each of his claims in his appeals to the state Supreme Court, even if that court is not likely to hear it.

Because an Illinois inmate did not appeal some of his claims to the state court years ago, he is barred from doing so now in a federal appeal, the court said (O’Sullivan vs. Boerckel, 97-2048).

* Ruled that private energy producers, not Indian tribes, own the rights to methane gas on land formerly owned by the federal government. In 1909, Congress gave the tribes the right to coal below the surface but that grant did not include the gas, the court said (Amoco Production Co. vs. Southern Ute Tribe, 98-830).