The opinion of the court was delivered by: Magistrate Judge Cole
MEMORANDUM OPINION AND ORDER
Maria Quintana underwent an elective total hysterectomy at Mount Sinai Hospital on October 13, 2008. During the surgery, Ms. Quintana's bowel was lacerated and its contents began leaking into her abdomen. Five days later, she died from an overwhelming infection. Ms. Quintana is survived by her husband and four children. Her estate has sued the United States under the Federal Tort Claims Act ("FTCA") since one of her surgeons, Dr. Maryam Siddiqui, was employed by the United States. The estate has also named Mount Sinai Hospital Medical Center of Chicago, ("MSHMCC") as a defendant, as well as various physicians and a physician foundation group for failing to timely diagnose and treat Ms. Quintana's post-operative infection. The Administrator of the estate sought discovery of statements made by physicians in any peer review meetings regarding the surgery.*fn1
In response to Interrogatory #10, which sought the identity of persons with knowledge of the facts of the medical care and treatment provided to Ms. Quintana, the United States listed two physicians, Dr. Thomas Vargish, Chairman of the Department of Surgery, Mount Sinai Hospital and Dr. Charles Lampley, a physician with Access Community Health Network, the federally funded health clinic that employed Dr. Siddiqui. But, the United States objected to the production of any evidence from these two witnesses, citing the Medical Studies Act, 735 ILCS 5/8 - 2101 et seq. ("IMSA"), which makes such information privileged. Similarly, in response to Interrogatory #14, the United States objected to any discovery of statements made by Dr. Siddiqui at an alleged peer review proceeding held at Access Community Health Network based on the Medical Studies Act.
After reviewing the discovery the United States did produce, plaintiff requested clarification of the privileges asserted and a privilege log. The United States then identified a four-page document it has described as a "Peer Review Case Report" from a peer review meeting held at Access Community Health Network. (Motion to Compel, Ex. B, September 6, 2011 letter from Assistant Attorney General Kurt Lindland). In response to Interrogatory #10, Mount Sinai identified a January 14, 2009 Peer Review Meeting at its medical center, but objected to discovery of any "discussions" at the meeting on the basis of the Medical Studies Act. In response to Interrogatory #15 and Request to Produce #13 and #25, Mount Sinai identified a one-page document constituting the minutes of the January 14, 2009 peer review meeting and has, like the United States, invoked the IMSA to withhold it from discovery. (Motion to Compel, Ex. C, Mount Sinai's Answers to Plaintiff's Interrogatories; Ex. D, Mount Sinai's Answers to Plaintiff's Request for Production).*fn2
Whether a privilege for medical peer review materials should be recognized in FTCA cases involving medical malpractice is an issue on which the courts are divided. A number have applied a privilege, while others -- perhaps the numerical majority -- have refused to do so. See Francis v. United States, 2011 WL 2224509, 6 (S.D.N.Y.2011)(collecting cases); KD ex rel. Dieffenbach v. United States, 715 F.Supp.2d 587, 592 (D. Del.2010)(collecting cases). All agree, however, that Rule 501 of the Federal Rules of Evidence provides the framework for analysis:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
Rule. 501. See Raybestos Products Co. v. Younger, 54 F.3d 1234, 1245 (7th Cir. 1995); Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981).
The principal claim here is brought under the FTCA; the defendants, other than the United States, have been joined pursuant to supplemental jurisdiction. That does not, however, affect the analysis of the privilege question. See Virmani v. Novant Health Inc., 259 F.3d 284, 287 (4th Cir. 2001); Shadur, 664 F.2d at 1061 (pendent state law claims did not require different result as "it would be meaningless to hold the communication privileged for one set of claims and not the other.").
In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court recognized a psychotherapist-patient privilege under Rule 501. The Court interpreted Rule 501's "reason and experience" phrase to mean that federal law will recognize a privilege that "'promotes sufficiently important interests to outweigh the need for probative evidence....'" Id. at 9-10. To that end, the asserted privilege: (1) must be "'rooted in imperative need for confidence and trust,'" and (2) "'must also serv[e] public ends." Id. at 10-11. (Brackets in original). Finally, the Court observed that the policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one. Id. at 12-13. After all, "state legislatures are fully aware of the need to protect the integrity of the factfinding functions of their courts" and a "State's promise of confidentiality would have little value if the [individuals it protects] were aware that the privilege would not be honored in a federal court." Id. at 13. As discussed below, all these criteria are satisfied by application of a peer review privilege in FTCA cases.
In the Seventh Circuit, the matter is not res integra. In Memorial Hospital v. Shadur, supra, the court examined at length the application of the IMSA in a federal question case. While the case was decided before Jaffee, the Court of Appeals anticipated and emphasized the same points that would underlie the Supreme Court's opinion in Jaffee, beginning with recognition of the importance of legislative judgments as expressed in state law. It noted that while the question of whether a privilege applies in a federal question case is governed by federal common law and reason and experience, "that does not mean . . . that federal courts should not consider the law of the state in which the case arises in determining whether a privilege should be recognized as a matter of federal law." Shadur, 664 F.2d at 1061. The court recognized that the "strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." Id. (quotation omitted). After all, if a state held out "the expectation of protection to its citizens, they should not be disappointed by a mechanical and unnecessary application of the federal rule." Id. (quotation omitted).
The court went on to caution that since privileges served "'to exclude relevant evidence and thereby block the judicial fact-finding function,'" they are not favored and, where recognized, must be narrowly construed. Id. (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)). Also, in deciding whether the privilege asserted should be recognized, the Seventh Circuit acknowledged that it was essential to take into account the particular facts of the case in which the issue arises. Shadur, 664 F.2d at 1064. That meant "weigh[ing] the need for truth against the importance of the relationship or policy sought to be furthered by the privilege, and the likelihood that recognition of the privilege will in fact protect that relationship in the factual setting of the case." Id. at 1061-62.
The Seventh Circuit presciently emphasized the vital role peer review plays in achieving the vital public good of protecting the health of the citizenry -- an interest the Supreme Court fifteen years later in Jaffee would recognize as "transcendent." Jaffee, 518 U.S. at 11 ("The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance."). And Congress, in enacting the Healthcare Quality Improvement Act of 1986 ("HCQIA") and the Patient Safety and Quality Improvement Act of 2005 (the "PSQIA"), 42 U.S.C. § 299b--21 et seq., has also recognized that medical malpractice and the need to improve the quality of medical care are matters of overarching national importance. See 42 U.S.C.A. § 11101(1); Virmani, 259 F.3d at 291; Francis v. United States, 2011 WL 2224509; and discussion infra at, insert.
The court in Shadur quoted, with approval, Bredice v. Doctor's Hospital, 50 F.R.D. 249 (D.D.C. 1970), aff'd, 479 F.2d 920 (D.C.Cir. 1973)(Table), which, like the instant case, was a malpractice action and which extended qualified privilege to the minutes and reports of a hospital review committee. The court's assessment of the need for confidentiality of peer review materials in medical malpractice cases bears repeating:
Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. Constructive professional criticism cannot occur in an ...