Another Statutory Privilege Offering Limited Protection For Certain Government Doctors

In Federal Tort Claim Act wrongful death suit, defendant hospital's "minor clerical error" in marking as "privileged" only two of a four pages of a "Surgical Service Quality Improvement Conference (SSQIC) Comments" regarding the decedent's death was not sufficient to waive the privilege not to disclose the "documents produced by the VA at focused reviews" of surgical outcomes; the statutory privilege accorded the SSQUIC Comments under 38 U.S.C. § 5705 and 38 C.F.R. § 17.501 was not waived by failure to adhere to a clerical requirement that was only "meant to ensure documents were not inadvertently produced or intermingled" with nonprivileged documents, in Jackson v. United States, _ F.3d _ (1st Cir. Feb. 12, 2013) (Nos. 11–1619, 12–1098)

As we recently noted, FRE 501 allows for the federal courts to consider the application of statutory evidentiary privileges. See Privileged Reports Under The Federal Railroad Safety Act. The challenge for the practitioner is identifying the range of such privileges.

The Federal Evidence Blog had previously examined the privilege of certain protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). See In Search Of Medical Record Privileges (even if the patient's drug logs were protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the requirements for HIPPA disclosure were met when the logs were subpoenaed). The First Circuit has recently assessed the operation of another statutory and regulatory privilege applicable to Veterans Administration Hospitals. An examination of the case may provide insight into a seldom addressed aspect of federal evidence practice.

In the case, decedent Giguere had been injured fighting in the Vietnam War and forty years later died in a VA Hospital during his recovery from surgery. His estate sued the government alleging medical malpractice under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. After a five day bench trial, the court's verdict was for the defendant U.S. The plaintiff estate appealed, contending that the court made an error in evidentiary rulings by enforcing a privilege protecting the defendant from releasing records assessing the efficacy of hospital practices. The estate argued that the government had waived this privilege by not complying with the requirements the statutory law that privileged documents be marked in a certain manner.

As the First Circuit explained, the privilege arises from 38 U.S.C. § 5705 and 38 C.F.R. § 17.501. These laws make "documents produced by the VA at focused reviews confidential and privileged. The plaintiffs had argued that "although 'the weekly surgical review constituted a privileged Focused Review,' the VA waived privilege because the VA Hospital “failed to comply with its agency's own directives because only the first page of these [SSQIC Comments] contained ‘language mandating protection,’“ as VHA Directive 2004–054 required, and that therefore no privilege attached.

According to the circuit, the roots of this privilege were found in a Directive by the Acting Under Secretary for Health of the VHA. This was "VHA Directive 2004–054" which had been issued on September 29, 2004, and ... expired on July 31, 2009."

VHA Directive 2004–054(g)(5)(c):

Protected peer review documents for quality improvement include all reviews of patient care by an individual provider that are performed for the purpose of improving the quality of health care and/or improving the utilization of health care resources. In order for the documents generated by a peer review to be protected confidential [sic] under 38 U.S.C. § 5705, and its implementing regulations, each peer review must be designated in writing as being conducted and/or prepared for quality improvement and/or resource utilization purposes prior to the initiation of the peer review. This designation can be issued by the Under Secretary for Health (for all VHA facilities), by a Veterans Integrated Services Network (VISN) Director (for VHA facilities within that VISN), and/or by the facility Director (for the individual facility).

  1. Language mandating protection under 38 U.S.C. § 5705 (such as the language in following subpar. 2g(5)(c) 2 ) must be clearly and visibly placed on every page of every document to be made confidential.
  2. All documents associated with this activity need to be treated as strictly confidential, unless determined otherwise after careful review (with documentation) by qualified VHA personnel. The following statement is recommended for required documentation ...

The circuit agreed with and quoted the District Court that no privilege had been waived, as:

VHA Directive 2004–054 indicates that privileged documents should be marked on every page. The obvious purpose of that requirement is to ensure that such documents are appropriately identified, so that they are not inadvertently produced or intermingled with nonprivileged documents. There is no indication that the VHA (or Congress) intended that an otherwise-privileged document should lose its protection because of a minor clerical error in marking the document.

The First Circuit endorsed this reasoning. The privilege applied and was not lost by mere clerical errors:

Nothing in the language of the directive mandates that we conclude, as the estate would have us do, that where a four-page document is clearly marked on its first two pages as confidential, confidentiality is lost as to the remaining pages. VHA Directive 2004–054(g)(5)(c)(1) and (2), when read together, demonstrate that the requirement imposed was a clerical one meant to ensure that documents were not “inadvertently produced or intermingled.” The estate does not argue that 38 U.S.C. § 5705 and 38 C.F.R. § 17.501—which extend privilege and confidentiality to all documents resulting from protected activities—do not apply to the SSQIC Comments. There was no risk of confusion or prejudice. The argument is without merit.

In Jackson the First Circuit provided a short review of a statutory privilege. It constituted a limited privilege -- one that could only be claimed by the government. But this is typical of statutory privileges. Many, such as that for SSQIC Comments, were designed to improve government operation -- here the ability of medical personnel to correct systematic mistakes.

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