Patients of Dr. Allen Sossan of South Dakota claim that he performed unnecessary medical procedures or performed procedures improperly on them. They sued Dr. Sossan and the hospitals that credentialed him. One of the claims is that the hospitals wrongfully credentialed Dr. Sossan to practice medicine at their institutions despite knowing that he had lost privileges to practice at his prior hospital in Nebraska and that questions had arisen regarding his fitness to practice medicine.
To help establish their claims, plaintiffs are seeking information about the process by which the hospitals credentialed Dr. Sossan (known in general as a “peer review” process). The defendants are claiming that the process is confidential, because South Dakota law recognizes an evidentiary privilege for peer-review discussions. The trial court recognized that the privilege exists but applied an exception for abuses of the process to facilitate criminal or fraudulent conduct (the “crime-fraud exception” — an exception that also applies to other privileges, such as attorney-client privilege). Therefore the trial court held that plaintiffs would be allowed discovery about the process that led hospitals to permit Dr. Sossan to practice despite his troubling record.
The defendants have appealed to the South Dakota Supreme Court, which will decide whether to affirm the crime-fraud exception to the peer-review privilege. Yesterday, Public Citizen weighed in with an amicus brief in support of plaintiffs, arguing based on the work of Public Citizen’s Health Research Group that the medical peer-review system is not performing adequately to protect patients, and that transparency in the peer review process in instances of criminal or fraudulent conduct will improve the system by deterring decisionmaking that is adverse to patient safety and by enhancing accountability for wrongdoing.
Read our brief here.