California appeals court reaffirms the confidentiality of the physician peer review process.

SAN DIEGO--(BUSINESS WIRE)--Sept. 7, 1995--On Aug. 31, 1995, the San Diego Court of Appeal (Fourth Appellate District, Division One) issued an important opinion that reaffirms the confidentiality of the physician peer review process in criminal proceedings.

In Scripps Memorial Hospital v. Superior Court of San Diego ("Scripps"), California Court of Appeal Case No. D022953, the court held that California's Evidence Code section 1157(a) prevents discovery in criminal litigation of the peer review records of hospital medical staffs, local medical societies, dentists, dental hygienists, chiropractors, and veterinarians.

In so holding, the court sharply criticized the 1991 decision by a Los Angeles Court of Appeal (Second District, Division Seven) in People v. Superior Court (1991) 234 Cal. App. 3d 363 ("Memorial Hospital").

Weissburg and Aronson Inc. represented the victorious appellant in this case, Scripps Memorial Hospital, and both the California Association of Hospitals and Health Systems and the California Medical Association filed "friend of the court" briefs. Carol Isackson, who argued the matter on Scripps' behalf before the Court of Appeal, applauded the decision, noting that "the health care community has strenuously criticized the Memorial Hospital opinion since it was issued in 1991."

Scripps, as well as both associations, believe that the Scripps decision properly interprets the legislative history of section 1157, which they believe clearly reflects that the legislature did not intend for the statute's protections to be limited to civil matters.

Isackson characterizes the prior Memorial Hospital decision as "an incorrect reading of the legislative history."

The Scripps case arose after a San Diego Deputy District Attorney subpoenaed from Scripps Memorial Hospital all peer review reports concerning a psychiatrist, who had been hired as an expert witness by a criminal defendant. The District Attorney believed that the physician had been criticized by his peers, and she wanted the information to impeach his testimony at trial.

Relying on the 1991 Memorial Hospital case, the trial court ordered Scripps to produce the physician's file. After obtaining an emergency stay, Scripps asked the Court of Appeals to review the trial court's order.

Isackson explained that the impact of the Scripps decision is twofold: First, the decision prohibits potential discovery of hospital peer review documents in any criminal case, regardless of whether the doctor is a witness or a defendant.

Second, the decision may have a significant effect on the ultimate outcome of another peer review case, Arnett v. Dal Cielo, 36 Cal. App. 4th 639, decided in July of this year.

Relying in part on Memorial Hospital's narrow construction of section 1157, Dal Cielo permitted discovery of peer review documents by the Medical Board of California, even though the board had not yet initiated any formal administrative or civil action. A petition for review of Dal Cielo is now pending before the California Supreme Court.

Weissburg and Aronson is a full-service commercial and business law firm and a nationally recognized leader in health care law. The firm has more than 70 attorneys practicing in offices in Los Angeles, San Francisco, San Diego and Sacramento, Calif.

CONTACT: Weissburg and Aronson Inc., San Diego

Carol Isackson, 619/234-6655, 619/234-3510 (fax)