Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 1 of 11
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`
`
`
`UNITED STATES OF AMERICA and the
`
`COMMONWEALTH OF MASSACHUSETTS,
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`ex rel.
`
`
`
`
`
`
`
`
`LISA WOLLMAN, M.D.
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`
`MASSACHUSETTS GENERAL HOSPITAL, INC.,
`THE MASSACHUSETTS GENERAL HOSPITAL’S
`PHYSICIAN’S ORGANIZATION, and
`
`
`PARTNERS HEALTHCARE SYSTEM, INC.,
`
`
`
`
`
`
`
`
`
`
`
`
`Defendants.
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`CIVIL ACTION NO.
`15-11890-ADB
`
`
`
`MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF/RELATOR’S
`MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS WITHHELD
`ON THE BASIS OF THE MASSACHUSETTS PEER REVIEW PRIVILEGE
`
`November 3, 2020
`
`
`DEIN, U.S.M.J.
`
`
`
`
`I. INTRODUCTION
`
`Plaintiff/Relator Lisa Wollman, M.D., a former anesthesiologist at Massachusetts
`
`General Hospital (“MGH”) has brought a qui tam action under the False Claims Act (“FCA”), 31
`
`U.S.C. §§ 3729 et seq., and the Massachusetts False Claims Act (“MFCA”), Mass. Gen. Laws ch.
`
`12, § 5B against MGH, Massachusetts General Physicians Organization (“MGPO”), and Partners
`
`Healthcare System (“Partners”) (collectively the “Defendants” or “MGH”). Dr. Wollman alleges
`
`that the Defendants fraudulently billed Medicare and Medicaid for overlapping and concurrent
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 2 of 11
`
`surgeries that required two patients to be under anesthesia at the same time. (See
`
`Memorandum and Order on Defendants’ Motion to Dismiss (Docket No. 102) (“MTD Order”)1 at
`
`3). Specifically, Dr. Wollman alleges that the “Defendants’ widespread use of Concurrent
`
`Surgery (1) endangered patients by placing them under ‘unnecessarily prolonged
`
`administrations of anesthesia’ that are not ‘reasonable and necessary’ and thus not
`
`reimbursable; (2) violated informed consent regulations by using a ‘relatively non-descript
`
`informed consent form and routinely t(aking) other affirmative steps to conceal the practice of
`
`concurrent and overlapping surgeries from patients that resulted in a lack of informed consent;’
`
`(3) violated record-keeping regulations because ‘surgeons falsified or failed to keep accurate
`
`records to conceal their practices;’ and (4) caused government payors to pay for work that
`
`teaching physicians did not do, either because they were not ‘immediately available’, did not
`
`designate qualified backup surgeons, were not present for ‘key or critical’ parts of surgery, or
`
`never appeared in the hospital room at all.” (Pl. Mem. re Stern Report (Docket No. 122-1) at
`
`1).2
`
`This matter is presently before the court on “Plaintiff-Relator’s Motion to Compel
`
`Production of Certain Withheld Documents” (Docket No. 203) pursuant to which the Relator is
`
`seeking to compel the production of documents withheld on the basis of a peer review
`
`
`1 The MTD Order is published as United States v. Gen. Hosp. Corp., 394 F. Supp. 3d 174 (D. Mass. 2019).
`
`2 The relevant pleadings addressing the Plaintiff’s motion to compel presently before this court include
`“Relator’s Memorandum of Law Supporting Her Motion to Compel Production of Certain Withheld
`Documents” (Docket No. 204) (“Rel. PR Mem.”); “Defendants’ Opposition to Plaintiff-Relator’s Motion to
`Compel Production of Documents Withheld on the Basis of the Massachusetts Peer Review Privilege”
`(Docket No. 210) (“Def. PR Opp.”) and “Relator’s Reply Memorandum in Further Support of Her Motion
`to Compel Production of Certain Withheld Documents” (Docket No. 211) (“Rel. PR Reply”).
`
`
`
`[2]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 3 of 11
`
`privilege. For purposes of this motion, it is undisputed that the documents at issue would be
`
`protected from production in state court by the Massachusetts peer review privilege as set
`
`forth in Mass. Gen. Laws ch. 111, § 204. (Rel. PR Mem. at 2-3; Def. PR Opp. at 6-7). The issue
`
`presently before the court is whether this court will apply a peer review privilege in the instant
`
`federal proceedings.
`
`After careful consideration of the written and oral arguments of the parties, this court
`
`holds that the peer review privilege does not apply in the instant case alleging health care
`
`billing fraud. Nothing herein, however, constitutes a ruling on whether the requested
`
`documents are relevant, or whether any other privileges apply. The Defendants shall modify
`
`their privilege log, if necessary, to reflect which documents on the log are still being withheld
`
`following this Order.3
`
`II. ANALYSIS
`
`The peer review privilege, under Massachusetts law, “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.” Tep v. Southcoast Hosps. Grp., Inc., Civil Action
`
`No. 13-11887-LTS, 2014 WL 6873137, *2 (D. Mass. Dec. 4, 2014) (citing Mass. Gen. Laws ch.
`
`111, §§ 204, 205). “[T]he fundamental purpose of the peer review privilege statute is to
`
`
`3 The Defendants contend that they have claimed the privilege for four categories of documents: (1)
`“communications regarding specific cases for medical peer review”; (2) “safety reporting documents”;
`(3) “overarching analyses of surgical quality and safety outcomes”; and (4) “meeting minutes and
`records of committee meetings for peer review purposes.” (Def. PR Opp. at 3-4). While the Defendants
`contend that the documents requested are not relevant, at oral argument they asked that the court rule
`on the application of the peer review privilege to the instant case, and not on the issue of the relevancy
`of the documents.
`
`
`
`[3]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 4 of 11
`
`promote quality health care.” Krolikowski v. Univ. of Mass., 150 F. Supp. 2d 246, 249 (D. Mass.
`
`2001). Thus, the medical privilege is intended “to promote candor and confidentiality . . . and
`
`to foster aggressive critiquing of medical care by the providers peers.” Gargiulo v. Baystate
`
`Health, Inc., 826 F. Supp. 2d 323, 324 (D. Mass. 2011), objections overruled, 279 F.R.D. 62 (D.
`
`Mass. 2012) (internal punctuation and citation omitted). The privilege stems from “‘a
`
`perceived medical malpractice crisis and doubts about the efficacy of self-regulation by the
`
`medical profession.’” Id. (quoting Carr v. Howard, 426 Mass. 514, 517, 689 N.E.2d 1304, 1306
`
`(1998)).
`
`“No peer review privilege exists in the Federal Rules of Evidence[.]” Tep, 2014 WL
`
`6873137, at *2. Where, as here, a case presents a federal question, “federal common law”
`
`applies to both federal and state law claims. Id. (citation omitted). The First Circuit has
`
`determined that two questions must be answered in the affirmative in order to recognize a
`
`state evidentiary privilege in the federal common law. First, would Massachusetts courts
`
`recognize such a privilege? In re Hampers, 651 F.2d 19, 22 (1st Cir. 1981). Here, it is
`
`undisputed that Massachusetts law has a medical peer review privilege, and for the purposes of
`
`this motion the parties agree that the privilege would apply to the documents being withheld
`
`on the basis of the privilege. See Mass. Gen. Laws ch. 111, §§ 204, 205; (Rel. PR Mem. at 2-3;
`
`Def. PR Opp. at 6-7).
`
`The second question which must be answered is whether the privilege is “intrinsically
`
`meritorious?” In re Hampers, 651 F.2d at 22 (internal punctuation and citation omitted). To
`
`make this determination, 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
`
`
`
`[4]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 5 of 11
`
`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.” Id. at 23 (internal punctuation and
`
`citations omitted); Tep, 2014 WL 6873137, at *4.
`
`
`
`The first three inquiries favor applying the privilege in this case. In Massachusetts,
`
`medical peer review committee proceedings, reports, and records “shall be confidential.”
`
`Mass. Gen. Laws ch. 111 § 204(a). This confidentially is essential as “[p]hysicians would be far
`
`less willing candidly to report, testify about, and investigate concerns of patient safety if their
`
`actions would be subject to later scrutiny and possible litigation.” Ayash v. Dana-Farber Cancer
`
`Inst., 443 Mass. 367, 396, 822 N.E.2d 667, 691 (2005). Finally, it is common sense that
`
`relationships that effectively promote patient safety ought to be “sedulously fostered.” In re
`
`Hampers, 651 F.3d at 23 (internal quotation omitted); Tep, 2014 WL 6873137, at *4.
`
`
`
`The final inquiry prevents this court from recognizing the peer review privilege in the
`
`instant case. It “essentially weighs the federal interest generally favoring disclosure against the
`
`state interest in the asserted privilege.” Tep, 2014 WL 6873137, at *4 (internal punctuation and
`
`citation omitted). “It makes a difference whether the federal interest in seeking full disclosure
`
`is a weak or strong one.” In re Hampers, 651 F.2d at 22. In this case, the nature of the FCA
`
`claim and relevant federal laws leads to the conclusion that the important federal interest in
`
`prosecuting health care billing fraud weighs strongly in favor of disclosure.
`
`
`
`
`
`[5]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 6 of 11
`
`Nature of the Claim
`
`
`
`The nature of the claim analysis highlights the federal interest at stake in the claim and
`
`compares it to the state interest in the privilege. Courts have applied the medical peer review
`
`privilege to claims where malpractice and patient care decisions were the essence of the
`
`federal claim, since the privilege “exists primarily to address concerns arising from anticipated
`
`malpractice litigation.” See Tep, 2014 WL 6873137, at *4-5 (recognizing the privilege in a
`
`wrongful death/negligence case which included a claim under EMTALA – a federal statute
`
`which restricts when hospitals may transfer individuals presenting with emergency medical
`
`conditions); Francis v. United States, Civil No. 09-4004-GBD-KNF, 2011 WL 2224509, at *6-7
`
`(S.D.N.Y. May 31, 2011) (recognizing the privilege in malpractice/wrongful death action brought
`
`under the Federal Torts Claims Act). In arriving at the decision to apply the privilege, the courts
`
`have recognized that the state’s goal in applying a privilege to improve the quality of medical
`
`care coincided with the goal of the federal statute at issue. See, e.g., Tep, 2014 WL 6873137, at
`
`*5 (finding that the privilege would “promote important federal interests in ensuring patient
`
`safety and preventing ‘patient dumping’ by encouraging full and fair peer review of adverse
`
`events that arise as a result of potential EMTALA violations[.]”); Francis, 2011 WL 2224509, at
`
`*5 (“The Court is persuaded that a privilege protecting peer review records from disclosure in
`
`medical or dental malpractice actions would promote the interests of health care practitioners,
`
`health care facilities and the public, by encouraging self-evaluation and improving the quality of
`
`care.”). See also United States v. Aurora Health Care, Inc., 91 F. Supp. 3d 1066, 1068 (E.D. Wis.
`
`2015) (noting that “a few district courts have recognized a peer-review privilege in cases
`
`
`
`[6]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 7 of 11
`
`involving federal claims that were analogous to state medical-malpractice claims”) and cases
`
`cited.
`
`However, courts have declined to recognize the medical peer review privilege in cases
`
`with claims not directly connected to malpractice. See Wisconsin Province of Soc’y of Jesus v.
`
`Cassem, No. 3:19-mc-00130 (VLB), 2020 WL 3470454, at *5 (D. Conn. 2020) (declining to
`
`recognize the medical peer review privilege in a dispute regarding a deceased doctor’s capacity
`
`to designate a beneficiary); Gargiulo, 826 F. Supp. 2d at 327-28 (declining to recognize the peer
`
`review privilege in an employment discrimination case implicating civil rights); KD ex rel.
`
`Dieffenbach v. United States, 715 F. Supp. 2d 587, 597 (D. Del. 2010) (noting that claims alleging
`
`malpractice do not have the same important federal interest at stake as claims “alleging
`
`violation of federal civil rights (which implicate the strong federal policy of rooting out invidious
`
`discrimination) or anti-trust laws (which involve the equally vital purpose of eradicating
`
`anticompetitive business practices”); Krolikowski, 150 F. Supp. 2d at 248-49 (declining to apply
`
`peer review privilege to sex discrimination claim).
`
`The instant case involves a closer question. Despite her present challenge to the
`
`application of the peer review privilege, the Plaintiff/Relator has consistently argued that her
`
`motivation in challenging the practice of overlapping surgeries was patient safety, and that the
`
`billing requirements were designed to improve the quality of medical care. Equally
`
`incongruous, despite their present assertion that the peer review privilege should apply, the
`
`Defendants have consistently presented this case as a billing dispute, unrelated to the quality of
`
`care. While these divergent positions may eventually be important in determining the
`
`admissibility of evidence at trial, this court concludes that the present dispute is sufficiently far
`
`
`
`[7]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 8 of 11
`
`removed from the purpose of the peer review privilege that the privilege should not apply in
`
`the instant case.
`
`
`
`“The [FCA] imposes civil liability on ‘any person’ who ‘knowingly presents, or causes to
`
`be presented, a false or fraudulent claim for payment or approval’ to the Government or to
`
`certain third parties acting on the Government's behalf.” Cochise Consultancy, Inc. v. United
`
`States ex rel. Hunt, 139 S. Ct. 1507, 1510, 203 L. Ed. 2d 791 (2019) (citing 31 U.S.C. §§ 3729(a),
`
`(b)(2)). The patient care attached to the allegedly fraudulent bills is not directly at issue in this
`
`case. The challenged surgeries may all have had very successful outcomes, yet the billing may
`
`have been inappropriate under Medicare and Medicaid regulations. Similarly, a negative
`
`outcome could, nevertheless, have been billed in compliance with the regulations. Moreover,
`
`while a potential malpractice suit might inhibit the medical profession from analyzing medical
`
`treatment (and hence warrant the application of a peer review privilege), there is nothing in the
`
`record which would support a conclusion that a potential billing challenge in the future would
`
`inhibit such self-analysis. Thus, the goal of the peer review privilege would not be thwarted if it
`
`was not applied in this case. On the other hand, the application of the privilege may deny the
`
`Relator access to information which the Relator believes may establish, among other things,
`
`that the Defendants knew about fraudulent billing practices. “Thus, recognizing the privilege in
`
`this case would come with a high cost: preventing the government from gaining access to
`
`evidence that might reveal that federal healthcare programs have been defrauded.” Aurora
`
`Health Care, Inc., 91 F. Supp. 3d at 1069 (declining to recognize a peer review privilege in the
`
`context of civil investigation of allegedly faulty health care billing)
`
`
`
`[8]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 9 of 11
`
`The parties have not identified any cases where a peer review privilege has been applied
`
`to claims of fraudulent billing and none have been found. Rather, other courts have
`
`consistently refused to recognize a medical peer review privilege in cases involving allegations
`
`of health care billing fraud. See United States ex rel. Polukoff v. Sorensen, No. 2:16-cv-00304-
`
`TS-DAO, 2020 WL 5645319, at *3 (D. Utah 2020) (declining to apply peer review privilege in the
`
`context of discovery sought in a FCA case where peer review documents might help the Relator
`
`establish scienter); In re Admin. Subpoena Blue Cross Blue Shield of Mass., Inc., 400 F. Supp. 2d
`
`386, 392 (D. Mass. 2005)(“[T]he federal interest in this investigation is to enforce laws against
`
`health care fraud, an interest other federal courts have found sufficiently strong to refuse to
`
`recognize a federal medical peer review privilege.”) and cases cited. This case offers no
`
`differentiating factors which would cause this court to diverge from the precedent set by other
`
`courts.
`
`Federal Statutes
`
`
`
`Courts also look to relevant federal law to determine if Congress’s goals in enacting the
`
`relevant laws would be furthered by recognizing the privilege. In reviewing federal law, courts
`
`must be “especially reluctant to recognize a privilege in an area where it appears that Congress
`
`has considered the relevant competing concerns but has not provided the privilege itself.” Univ.
`
`of Pa. v. EEOC, 493 U.S. 182, 189, 110 S. Ct. 577, 582, 107 L. Ed. 2d 571 (1990) (declining to the
`
`extend the peer review privilege to educational institutions when Congress could have included
`
`the privilege in Title VII but did not).
`
`
`
`As it pertains to the peer review privilege two federal statutes are relevant, the Health
`
`Care Quality Improvement Act of 1986 (“HCQIA”) and the Patient Safety Quality Improvement
`
`
`
`[9]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 10 of 11
`
`Act of 2005 (“PSQIA”). The HCQIA promotes physician engagement in the peer review process
`
`by extending qualified immunity to those conducting peer reviews. 42 U.S.C. §§ 11101(5),
`
`11111 (a)(2) (1986). “Significantly, Congress did not also create a federal evidentiary privilege
`
`for most documents produced during such a review, indicating that it ‘not only considered the
`
`importance of maintaining the confidentiality of the peer review process, but took the action it
`
`believed would best balance protecting such confidentiality with other important federal
`
`interests.’” In re BCBS, 400 F. Supp. 2d at 390 (quoting Teasdale v. Marin Gen. Hosp., 138 F.R.D.
`
`691, 694 (N.D. Cal. 1991)). In doing so, Congress chose not to include a medical peer review
`
`privilege covering all peer review materials in the HCQIA. See id.
`
`
`
`The more recent PSQIA has been construed to “signal[]a ‘shift in congressional policy’
`
`aimed at providing broad protection for peer review work product in an effort to improve
`
`patient safety and quality of care.” Tep, 2014 WL 6873137, at *5; see generally 42 U.S.C. §
`
`299b-1 et seq.. It “‘tackled the larger problem of systemic weaknesses in the delivery of health
`
`care resulting in preventable adverse events.’” Id. at *2 (quoting KD, 715 F. Supp. 2d at
`
`595). To do so, the PSQIA provides evidentiary protection to materials used in the medical peer
`
`review process that were “gathered or generated in connection with reports to specified
`
`‘patient safety organizations.’” Id.
`
`
`
`Congress’s silence is telling. Congress expanded protections over the medical peer
`
`review process but notably limited the expansion to documents related to reports for “patient
`
`safety organizations.” Congress did not extend the privilege to include all medical peer review
`
`evidence from medical care providers. Further, unlike in cases where patient care was a central
`
`
`
`[10]
`
`

`

`Case 1:15-cv-11890-ADB Document 216 Filed 11/03/20 Page 11 of 11
`
`issue, the purpose of the PSQIA will not be advanced by recognizing the medical peer review
`
`privilege in the instant case, where the quality of patient care is not directly at issue.
`
`
`
`In sum, both the nature of the claims being brought and Congress’s decision not to
`
`create a broad medical peer review privilege dictate that this court decline to recognize the
`
`medical peer review privilege in this case. The federal interest in preventing billing fraud
`
`outweighs the state interest at issue. Finally, given “that the production of documents would
`
`be subject to a protective order to preserve confidentiality, any concerns about discouraging
`
`rigorous and honest evaluation of physician conduct by public disclosure have been
`
`minimized.” In re BCBS, 400 F. Supp. 2d at 391.
`
`III. CONCLUSION
`
`For the reasons detailed herein, “Plaintiff-Relator’s Motion to Compel Production of
`
`Certain Withheld Documents” (Docket No. 203) is ALLOWED. The peer review privilege does
`
`not apply in the instant case alleging health care billing fraud. Nothing herein, however,
`
`constitutes a ruling on whether the requested documents are relevant, or whether any other
`
`privileges apply. The Defendants shall modify their privilege log, if necessary, to reflect which
`
`documents on the log are still being withheld following this Order.
`
`/ s / Judith Gail Dein
`Judith Gail Dein
`United States Magistrate Judge
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`[11]
`
`