PEER REVIEW

In Re Admin. Subpoena Blue Cross Blue Shield of Mass., No. 05-10041-PBS (Mass. Dist. Ct. July 28,2005)

During the investigation of a physician for health care fraud, the government attempted to subpoena documents from an insurer that included the physician in its provider network. The insurer complied with the subpoena with one exception – it declined to produce documents relating to an ongoing investigation by its Medical Peer Review Committee claiming that this information was privileged. While the peer review privilege is recognized in most states, federal courts are evenly split over whether a medical peer review privilege exists under federal common law. Here, the United States District Court of Massachusetts chose to recognize the privilege and, using a balancing test, found that the government failed to show that the benefit gained from disclosure of the peer review records would outweigh the injury to the insurer. Therefore, the insurer's peer review documents were not discoverable.