Peer Review Privilege Not Applicable To Medicare Billing Fraud Cases, Holds Mass. Court

On November 3, in the District of Massachusetts, Judge Judith Gail Dein proclaimed that federal law does not recognize “peer review privilege” within cases in federal court where the cause of action is centered around billing fraud for Medicare or Medicaid. The underlying case involved a plaintiff, Dr. Lisa Wollman, suing the defendant, her prior employer Massachusetts General Hospital (MGH), on grounds that MGH allegedly billed the same surgery twice per session, in order to illegally acquire additional reimbursement from the federal government. 

The court explained the pertinent facts as follows: Wollman was a former anesthesiologist at MGH. While employed with the defendant, the plaintiff asserted that patients were being kept under “unnecessary prolonged administrations of anesthesia” in order for surgery times to run concurrently, thus allowing for double-billing to Medicare and Medicaid. In order to cover up the billing fraud, Wollman proffered that MGH “violated informed consent regulations by using a ‘relatively non-descript informed consent form and routinely (taking) other affirmative steps to conceal the practice of concurrent and overlapping surgeries from patients that resulted in a lack of informed consent’ (and) violated record-keeping regulations because ‘surgeons falsified or failed to keep accurate records to conceal their practices.’” Based on this purported knowledge, the plaintiff left her job and, subsequently, sued the defendant under the federal False Claims Act. In furtherance of the litigation, Wollman then filed a motion to compel MGH to provide records evidencing the claimed billing fraud scheme, in opposition of the defendant’s assertion that such records were not subject to legal process as said records fell under the peer review privilege.

The opinion explained that “(t)he peer review privilege… ‘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.’ [T]he fundamental purpose of the peer review privilege statute is to promote quality health care…. Thus, the medical privilege is intended ‘to promote candor and confidentiality . . . and to foster aggressive critiquing of medical care by the providers’ peers.’” Given the aforementioned legal standard, the court continued, the privilege is understandably focused on, derived from, and substantially limited to medical malpractice legal actions, as without some guarantee of confidentiality for physician findings, “[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.”

 The court granted the plaintiff’s motion to compel, concluding that, as noted above, “courts have declined to recognize the medical peer review privilege in cases with claims not directly connected to malpractice.” The court further held that precedent mandated that if Congress wanted to make the peer review privilege applicable to billing fraud cases, it must do so explicitly, as the courts shall not recognize such a privilege from statutory silence. 

Wollman is represented by Guttman, Buschner & Brooks PLLC.