PEER REVIEW PRIVILEGE/VETERANS ADMINISTRATION HOSPITAL

Bethel v. U.S. ex rel. VA Med. Ctr., No. 05-cv-01336-PSF-KLM (D. Colo. Oct. 19, 2007)

In this action brought under the Federal Tort Claims Act by a patient against a V.A. hospital for injuries he suffered during surgery, the United States District Court for Colorado denied the hospital's motion to reconsider the court's order compelling the hospital to produce an external professional review document not included on its privilege log. The hospital claimed that the document was protected under the federal "quality assurance" privilege for V.A. hospitals under 38 U.S.C. §5705. Contrary to the hospital's position, the lower court concluded that the document appeared to fall under an exclusion to the privilege of "non-routine, problem generated chart, procedure or film." The court in this case observed that the hospital failed to address this determination in its motion for reconsideration and then the court proclaimed that just because language in the document in controversy indicated that it was part of privileged peer review did "not necessarily make it so."