The Peer Review Privilege and Evidence Code Section 1157
The Evidence Code Section 1157 Privilege
Evidence Code Section 1157 does create a privilege or something very much like a privilege. Specifically, it establishes a discovery protection for the proceedings and records of organized medical committees and peer review bodies that have the responsibility of evaluating and improving the quality of care in hospitals (Willits v. Superior Court, 20 Cal.App.4th 90 (1993)); (County of San Diego v. Superior Court, 176 Cal.App.3d 1009 (1986)) This protection prevents these records and proceedings from being subject to discovery.
Why the 1157 Privilege Exists
The logic is simple, as the court said in Scripps Memorial Hospital v. Superior Court (1995) 37 Cal.App.4th 1720, 1725 [“Absent protection against disclosure, the fear is physicians will stop providing negative comments or constructive criticism”]. The protection is for the person supplying the information.
See also:
People v. Memorial Medical Center of Los Angeles (1991) 234 Cal. App. 3d 363, 373 (“The maintenance of high medical standards depends on the effectiveness of the oversight of such [medical staff] committees”).
What is Protected?
The protections are limited but very strong. No peer review related materials “shall be subject to discovery.” The other limitation is that a person “shall not be required to testify as to what transpired at [a peer review related] meeting.” (See: West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 855)
Applications for privilege are protected because there is a policy to encourage candor by the applying physician. See: Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1227
An Individual Can Choose to Waive But What About a Hospital?
In Fox v. Kramer (2000) 22 Cal.4th 531 the Supreme Court did not decide but suggested that a hospital could consent to a waiver. At page 541, the Court said that “the hospital, as the holder of the privilege under . . . section 1157, subdivision (a), did not waive it by virtue of its mandatory cooperation with the DHS inquiry.” Finally, Section 1157 does not immunize from discovery files of the hospital administration as distinguished from the hospital medical staff. See: Saddleback Community Hospital v. Superior Court (1984) 158 Cal.App.3d 206, 208–209; Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 628. In addition, the fact that a committee has evaluated a physician for staff privileges is not protected although the contents of the evaluation are. (Brown v. Superior Court (1985) 168 Cal.App.3d 489 at pp. 501–502.
Who is Protected?
Finally it is important to remember that the purpose of the statute is not to protect the subject doctor. The Supreme Court has stated that “[t]he obvious general purpose of section 1157 is to improve the quality of medical care in the hospitals by the use of peer review committees.” (West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 851) In Matchett v. Superior Court (1974) 40 Cal.App.3d 623 the Supreme Court explained that “..Section 1157 was enacted upon the theory that external access to peer investigations conducted by staff committees stifles candor and inhibits objectivity. It evinces a legislative judgment that the quality of in-hospital medical practice will be elevated by armoring staff inquiries with a measure of confidentiality.” (Matchett, at pp. 628–629, fn. omitted) See also: Scripps Memorial Hospital v. Superior Court (1995) 37 Cal.App.4th 1720, 1725 [“Absent protection against disclosure, the fear is physicians will stop providing negative comments or constructive criticism”].)
Can You Find Out Who Was Contacted by the Peer Review Committee?
There is no prohibition against learning who has been contacted by the MEC. There is no prohibition on that person voluntarily speaking or sharing materials.
Small Exception - 1157 & Some Mandamus Proceedings
There is an interesting carve out that is very important. That standard rule set out in Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 482–485 is that a doctor can't file a lawsuit challenging a staff privilege denial unless the physician first seeks relief by a writ of mandamus. Does the 1157 protection/privilege exist in this circumstance?
In general, there is no exception for mandamus proceedings. Some excellent hospital attorneys (Names below) wrote this:
PORTER, SCOTT, WEIBERG & DELEHANT
Norman V. Prior
Jonathan A. Corr
GREINES, MARTIN, STEIN & RICHLAND LLP
Martin Stein
Lillie Hsu
Section of Brief
It is, of course, true that the statute embraces the goal of peer review candor at the cost of occasionally impairing plaintiffs' access to potentially relevant evidence. (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 629.) But "the Legislature has made the judgment call that an even more important societal interest is served by declaring such evidence 'off limits." (West Covina Hospital v. Superior Court (1984) 153 Cal.App.3d 134, 138.) As one appellate court has explained, "[i]t is not our function as a judicial body to reweigh the competing interests considered by the Legislature based on our perception of which consideration mayor may not be more important." (California Eye Institute v. Superior Court (1989) 215 Cal.App.3d 1477, 1486.) Thus, section 1157 provides "complete protection" against discovery, regardless of a plaintiffs need for the evidence. (Scripps Memorial Hospital v. Superior Court (1995) 37 Ca1.App.4th 1720, 1724; Snell v. Superior Court (1984) 158 Cal.App.3d 44, 49.) It applies, not only to medical malpractice actions, but to any civil action not specifically exempted by section 1157. (See Willits v. Superior Court (1993) 20 Ca1.App.4th 90, 101-102; California Eye Institute, supra, 215 Cal.App.3d at p. 1485.
The limited carved out exception is discussed in California Eye Institute. The court wrote:
Dr. Kaye's action is one for damages rather that an action for administrative mandamus (Code of Civ. Proc., § 1094.5) seeking to currently become or remain a hospital staff member. Accordingly, Dr. Kaye does not fall within the plain and unambiguous terms of the exception to section 1157 applicable only where a person is “requesting hospital staff privileges.”
California Eye Institute v. Superior Court (1989) 215 Cal.App.3d 1477, 1481
So the carve out is just relating to a mandamus peitition regarding privilege denial. Even this ruling is being challenged by attorneys for hospitals.
Criminal Proceedings are a Different Matter - Evidence Code Section 1157 May Not Apply
Step Back - Federal Courts vs. State Courts
Federal courts are not bound by the 1157 protections although in certain cases under a conflicts of law theory 1157 may apply (such as a diversity case which is a pure state law case that is in federal court only because one side of the case is from "out of town" and they get to use the federal courts to avoid being treated unfairly.
The minute federal issues are involved the protection is generally inapplicable. Federal Rule of Evidence 501 applies and not the California rules of evidence. If there is a claim of privilege at best for the party seeking protection, federal common law would apply. See: Burrows v. Redbud Community Hospital District (N.D.Cal. 1998) 187 F.R.D. 606, 608
Federal law matters because criminal cases involve the protections of the U.S. Constitution including the 5th and 6th Amendments. If federal law can preempt 1157 in civil cases certainly (even in state court) the right to a fair trial (Due Process) outweighs 1157 protections.
Again consider the history and policy behind the protection and ask yourself, does this policy fade in importance when a person's right to a fair criminal trial is at stake?
In 1990, the Legislature passed a “comprehensive overhaul of the physician discipline system,” which included amendments to section 805. (People v. Superior Court (Memorial Medical Center) (1991) 234 Cal.App.3d 363, 385 (Memorial Medical Center).) The Legislature declared that “the physician discipline system administered by the board's Division of Medical Quality is inadequate to protect the health, safety, and welfare of the people of California against incompetent or impaired physicians” and that the Legislature intended to “restructure the physician discipline system … in order to give [the Medical Board of California] authority to act quickly in extreme cases … in the interests of protecting the people of California.” (Ibid., emphasis added, quoting Stats. 1990, ch. 1597, § 1, p. 7683.)
Based on this legislative history, numerous courts have held that the Legislature's intent in enacting Business and Professions Code section 805 “was to promote the … improved public health and safety.” (Memorial Medical Center, supra, 234 Cal.App.3d at p. 385; see Stiger, supra, 201 Cal.App.4th at pp. 655–656 [adopting construction of statute that “promotes rather than defeats its purpose”].)
Nothing in this history even attempts to balance a person's right to their freedom from imprisonment and the need for effective physician oversight. The core rule is that the Fourteenth Amendment’s guarantee of procedural due process affects procedures in state criminal cases in two ways. First, through the doctrine of incorporation, the Supreme Court has held that the Due Process Clause applies to the states nearly all the criminal procedural guarantees of the Bill of Rights, including those of the Fourth, Fifth, Sixth, and Eighth Amendments. Second, the Supreme Court has held that the Due Process Clause prohibits government practices and policies that violate precepts of fundamental fairness, even if they do not violate specific guarantees of the Bill of Rights.
There are counter arguments that focus on the importance of peer review. This is a paragraph from an unpublished case called Anderson v. Superior Court.
There, the California Supreme Court held that the People's constitutional right to “due process of law” set forth in article I, section 29 did not conflict with the “shield law” (art. I, § 2(b), which protects newspersons against being adjudged in contempt for refusing to disclose unpublished information or the source of information, whether published or unpublished. (Miller, supra, 21 Cal.4th at pp. 890–893, 895.) Acknowledging that “a criminal defendant's federal constitutional right to a fair trial may in some cases overcome a claim of immunity under the state shield law” (id. at p. 891, citing Delaney v. Superior Court (1990) 50 Cal.3d 785, 805 (hereafter Delaney )), the court explained: “In Menendez [v. Superior Court (1992) 3 Cal.4th 435], we concluded that whatever ‘the people['s] ... right to due process of law’ in article I, section 29 might mean, ... it specifically does not mean a right of access to evidence in contravention of previously existing evidentiary privileges and immunities, which include those given to the press. Therefore, there is no conflict between the shield law and the subsequently enacted people's right to due process of law, and accordingly, no need to engage in the balancing of interests prescribed by Delaney.” (Miller, supra, 21 Cal.4th at p. 895.)
Anderson v. Superior Court (Cal. Ct. App., Jan. 11, 2011, No. C064778) 2011 WL 82287, at *7 (Unpublished)
Recently the First District Court of Appeal weighed in favoring the privilege:
The fundamental principle Wandrey relies upon derives from Davis v. Alaska (1974) 415 U.S. 308 (Davis), which found a defendant's constitutional right to confrontation was violated when he was precluded from cross-examining a crucial prosecution witness for bias on the basis that the information he sought to elicit was confidential under state law. Applying the principles established in Davis to a defendant's attempt to obtain pretrial discovery of victims’ psychotherapy records, Reber held the court erred “to the extent it failed to (1) obtain and examine in camera all the materials under subpoena, (2) weigh defendants’ constitutionally based claim of need against the statutory privilege invoked by the People, (3) determine which privileged matters, if any, were essential to the vindication of defendants’ rights of confrontation and (4) create a record adequate to review its ruling.” (Reber, supra, 177 Cal.App.3d at p. 532.) Hammon subsequently disapproved Reber and a line of cases following it, finding trial courts are “not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers.” (Hammon, supra, 15 Cal.4th at p. 1119, italics added.)
People v. Wandrey (2022) 80 Cal.App.5th 962, 972 [296 Cal.Rptr.3d 460, 466], review dismissed, cause remanded (Cal. 2023) 312 Cal.Rptr.3d 361 [534 P.3d 90]
An interesting issues is whether a criminal defense has access to peer review material that is not related to the criminal charge. But .... the defendant doctor wants to know who gave information against him to a peer review committee in order to show BIAS against him when that same person testifies in a criminal case. What if the accused doctor claims that the witness against him gave deliberately false information to a peer review committee? Isn't that relevant to bias on the part of that witness?The United States Supreme Court has underscored that exposing a witness's bias is a crucial and proper function of the constitutionally protected right of cross-examination (Davis v. Alaska, 415 U.S. 308 (1974). This is because bias is traditionally viewed as a potent form of impeachment evidence, crucial for assessing the credibility and reliability of a witness's testimony (People v. Castaneda-Prado, 94 Cal.App.5th 1260 (2023))
In conclusion, we believe that Davis v. Alaska and other due process cases (Chambers v. Mississippi) will open up discovery and void 1157 protections when a fair criminal trial is at stake. Otherwise the privilege is strongly supported by the courts again, with limits in criminal cases, federal cases and very limited state mandamus cases.
Daniel Horowitz is an expert in complex areas of medical law and he is a certified criminal defense specialist. For complex legal issues involving physicians, his medical practice team can assist you in protecting your license and in criminal cases, your freedom.