State confidentiality laws don't protect peer review records.

A medical facility must release its peer review records to investigators despite state confidentiality laws, the Second Circuit has ruled in a case involving two Connecticut psychiatric hospitals.

The court found that federal law--the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI)--trumps state law and said the term "all records" includes "peer review records." (Protection & Advocacy for Persons with Disabilities v. Mental Health &Addiction Servs., 448 F.3d 119 (2d Cir. 2006).)

"Doctors and hospitals hold peer review records in very high regard," said Nancy Alisberg, managing attorney for Connecticut's Office of Protection and Advocacy for Persons with Disabilities (OPA), which brought the lawsuit. Alisberg agreed that the confidentiality of peer review is vital to hospitals, "but what they had a hard time understanding is that we were looking for these records as part of our federal authority, not as part of a civil action."

"Protection and advocacy groups have often used information from these records, including peer review records, to do investigations that have changed policies and saved lives," said Jennifer Mathis, deputy legal director of the Bazelon Center for Mental Health Law in Washington, D.C. "And the reason the federal law exists is because of a very long history of very widespread abuse of people with disabilities."

In 2000, OPA began looking into the death of Rose Marie Cinami, a schizophrenic patient who choked to death at Cedarcrest Regional Hospital in Newington. Cedarcrest turned over all documents related to Cinami's treatment except its peer review records.

In April 2002, James Bell, a man who suffered from paranoid schizophrenia, died after being put into shackles at Whiting Forensic Institute in Middletown. (See Antonio Ponvert III, A Chance at Justice: Justice for a Lost Soul, TRIAL, July 2006, at 60.) Like Cedarcrest, Whiting turned over everything to OPA investigators except the peer review records, saying these were privileged under Connecticut law.

In response, OPA filed a federal law suit under [section] 1983 and PAIMI. The Connecticut Department of Mental Health and Addiction Services, which runs the two hospitals, argued that PAIMI's requirement to produce "all records of any individual" is ambiguous--it could mean records belonging to the person, or records that have to do with the person's treatment--and should be resolved in the state's favor.

The court rejected this reasoning, saying that PAIMI--and for that matter, Congress's intent--could not be clearer. In particular, [section] 10806 of the act specifies that "the term 'records' includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury."

The opinion by Justice Sonia Sotomayor called the mental health department's claim a "tortured reading" of the law, adding that the Third and Tenth Circuits had ruled the same way. At press time, the Eighth Circuit had also issued a similar ruling. (Missouri Protection & Advocacy Servs. v. Missouri Dep't of Mental Health, 447 F.3d 1021 (8th Cir. 2006).)

"We join our sister circuits," Sotomayor wrote, "in holding that the plain language of PAIMI that grants OPA access to 'all records ... of any individual' ... encompasses peer review records." The court concluded that "Congress has clearly spoken to the question of whether OPA may have access to Cinami and Bell's peer review records."

Alisberg said peer review reports often discuss the precise event that warrants investigation, which makes them crucial to resolving a case. Mathis agreed, saying, "If a person dies in a way that raises serious questions, that is likely to be in the peer review. It's obviously very important."

The Second Circuit also took up the issue of preemption, which the mental health department had raised as another defense. Connecticut law exempts peer review records from discovery, but the statute says the exemption applies only to civil actions.

"In this case," Sotomayor concluded, "OPA sought the peer review records as part of a statutorily authorized investigation, not a civil action arising out of the subject of the peer review proceedings. OPA contends that a statutorily authorized investigation is not a civil action and thus there is no conflict between PAIMI and Connecticut law."

Mathis said that Congress worded PAIMI so specifically that it is impossible to doubt its intent.

"This is your quintessential 'clear statutory language,'" she said. "It really doesn't get any more plain than this."