plaintiff was alleging that the hospitals were negligent when granting the physician membership and clinical privileges, it could not see how such a claim could be brought without granting access to the requested documents. Data Bank Information Discoverable The hospital also contended that the Data Bank information provided by the physician in his application is privileged from discovery under the Health Care Quality Improvement Act (42 USC § 11137(b)(1)), although it did not cite any cases that supported this argument. Again, the court noted that while the information is indeed considered confidential and will only be released to a plaintiff’s attorney in a medical malpractice case by the Data Bank if it can be established it failed to query at the time of appointment and reappointment, HCQIA makes no reference to the information also being privileged from discovery. The court specifically stated: “Reading the confidentiality provision in paragraph (b) of Section 11137 of the Health Care Quality Improvement Act in conjunction with the Code of Federal Regulations, we believe it is clear that information reported to the NPDB, though confidential, is not privileged from discovery in stances where, as here, a lawsuit has been filed against the hospital and the hospital’s knowledge of information regarding the physician’s competence is at issue.” Implication and Recommendations 1. Credentials File Versus Quality File Most hospitals have a credentials file and a quality file for each medical staff member that separates the application materials, which generally are not protected, from peer review and other quality information, which usually are privileged from discovery under state and/or federal law. In this case, it appears that there was only one combined file.

Had the Data Bank information been separated out and placed in the quality file, there may have been a different outcome. Hospitals should carefully review their files to make sure they are correctly divided between non-privileged versus privileged materials. 2. Need to Review State Laws and Applicable Case Law In light of the dichotomy between information which is “privileged” versus “confidential,” hospitals should review applicable state statutes and applicable case law to determine what actual information is and is not privileged from discovery and/ or admissibility into evidence in state and/or federal proceedings. The outcome of this review may affect the kinds of questions asked in the appointment/reappointment application and the information requested to determine what language is referenced. Interestingly, the actual Data Bank reports were not requested by the plaintiff and not provided by the defendant. 3. Need to Argue That Information Is Being Used for Protected Peer Review Deliberations and, Therefore, Is Not Discoverable Depending on your statutory language this argument may or may not succeed. A copy of the Klaine opinion is available here. www.kattenlaw.com AUSTIN | CENTURY  CITY | CHARLOTTE | CHICAGO | HOUSTON | IRVING | LONDON | LOS  ANGELES | NEW  YORK | ORANGE  COUNTY | SAN  FRANCISCO  BAY  AREA | SHANGHAI | WASHINGTON,  DC Attorney advertising.

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