Massachusetts peer review privilege does not apply in federal cases alleging health care billing fraud

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A magistrate judge for the U.S. District Court for the District of Massachusetts recently held the peer review privilege did not apply in a case alleging health care billing fraud. In Wollman v. Massachusetts General Hospital, Dr. Lisa Wollman, a former anesthesiologist at Massachusetts General Hospital (“MGH”), brought a qui tam action under the False Claims Act and the Massachusetts False Claims Act, alleging that MGH and its physicians organization fraudulently billed Medicare and Medicaid for “overlapping and concurrent surgeries that required two patients to be under anesthesia at the same time.” In addition to alleging these overlapping surgeries were fraudulent billing practices, Dr. Wollman alleged they endangered patients by placing them under anesthesia for longer than necessary, violated informed consent regulations, violated recording keeping regulations, and caused the government to pay for teaching physicians who were not present during key parts of the surgeries.

In the course of discovery, Dr. Wollman sought documents withheld from production by MGH on the grounds the documents were protected by the peer review privilege, codified in G.L. c. 111 § 204. The Massachusetts peer review privilege protects from disclosure any proceedings, reports, and records of a medical peer review committee, as well as any additional documents or information prepared in order to comply with risk management or quality assurance programs established by the state.

There is no federal peer review privilege, and therefore the Court needed to determine whether to apply the state privilege. In making its determination, the Court applied the First Circuit’s two part test, laid out in In re Hampers, which federal courts use in order to determine whether to recognize a state law evidentiary privilege. Under the In re Hampers test, the following two questions must be answered in the affirmative: (1) would a Massachusetts court recognize such a privilege; and, (2) is the privilege intrinsically meritorious? To determine whether a privilege is intrinsically meritorious “a court must answer four inquiries favorably to the party seeking to invoke the privilege: 1) whether the communications originate in a confidence that they will not be disclosed; 2) whether this element of confidentiality is essential to the full and satisfactory maintenance of the relation between the parties; 3) whether the relationship is a vital one, which ought to be sedulously fostered; and 4) whether the injury that would inure to the relation by the disclosure of the communications (would be) greater than the benefit thereby gained for the correct disposal of litigation.”

The Court held that while Massachusetts courts recognize the peer review privilege (prong one of the In re Hampers test), the privilege was not intrinsically meritorious (prong two). In holding the peer review privilege was not intrinsically meritorious as applied in this case, the Court acknowledged that parts one through three of the inquiry favored applying the privilege. However, all three were outweighed by the fourth factor, which the Court reasoned heavily favored not applying the privilege. The federal interest in disclosing the withheld documents in cases prosecuting health care billing fraud outweigh the state interest in preventing disclosure. The Court noted that no other cases could be identified, by it or the parties, where the peer review privilege had been applied to claims of fraudulent billing. Moreover, other courts have consistently refused to recognize the peer review privilege in cases involving allege healthcare billing fraud.


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