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JOHNSON v. GREATER SOUTHEAST COMMUNITY HOSP. CORP.

April 14, 1992

HAROLD D. JOHNSON, M.D., Plaintiff,
v.
GREATER SOUTHEAST COMMUNITY HOSPITAL CORP., et al., Defendants.


Revercomb


The opinion of the court was delivered by: GEORGE H. REVERCOMB

ORDER

This case was remanded from the Court of Appeals on December 13, 1991, for the reasons set forth in the opinion by Judge Wald, C.A. No. 91-7002, slip op. In that opinion, the Court of Appeals in its conclusion instructed this Court to

 determine whether [plaintiff's] Medical Staff membership and privileges at Greater Southeast [hospital] have in fact been terminated. If so, all of [plaintiff's] claims would appear to be ripe and the district court should proceed to adjudicate them on the merits. If termination has not taken place, the court should consider the merits of [plaintiff's] claims that do not depend on whether [plaintiff's] Medical Staff membership and privileges have been terminated.

 Preceding this instruction, the Court of Appeals enunciated the several "non-termination claims" that it considered ripe for review. The Court of Appeals also urged this Court "to give serious consideration . . . to any renewed motion to unseal [the record] in light of this circuit's demanding standards governing the sealing of judicial records" as set forth in United States v. Hubbard, 208 App. D.C. 399, 650 F.2d 293, 317-22 (D.C. Cir. 1980), and in light of the Fourth Circuit Court of Appeals's recent holding, analogous to this case, in Stone v. University of Maryland Medical Sys. Corp., 948 F.2d 128 (4th Cir. 1991).

 Remand to this Court has reactivated those portions of the defendants' motion to dismiss and/or for summary judgment that were not adjudicated before appeal due to dismissal of the suit on unripeness grounds, and has also reactivated plaintiff's motion for partial summary judgment on his civil rights claims. In addition, since mandate issued from the Court of Appeals, the plaintiff has renewed her motion to unseal the record, which the defendants have opposed, and the defendants have moved for a stay of discovery pending the Court's determination of whether plaintiff's staff membership and privileges in fact have been terminated, which plaintiff has opposed. As to defendants' motion for a stay, plaintiff has additionally moved for imposition of Rule 11 sanctions on defense counsel on grounds that their request for a stay is frivolous and dilatory in light of Court of Appeals's opinion.

 This Court has now considered the pleadings submitted on the motion to unseal, the motion for a stay, and the motion for sanctions, has heard argument from the parties on these motions, and has considered their recommendations on how this action might best proceed. For the reasons set forth below, the Court grants plaintiff's motion to unseal the record in its entirety. The Court denies the motions for both a stay and for sanctions for the reasons already stated on the hearing record on April 9, 1992. The Court further has established a schedule for discovery to proceed on all matters, including the issue of termination, and for submission of additional dispositive motions, which the Court will consider at a motions hearing along with those dispositive motions already pending. This schedule is set forth in a separate scheduling order.

 During argument on his motion to unseal the record, the plaintiff reiterated the Court of Appeals's finding of "an obvious public interest in being informed about the quality of health care" through access to judicial records on the peer review proceeding at issue. Plaintiff also restated his own desire for disclosure, which apparently relates at least in part to difficulties the plaintiff encounters due to the seal in adequately addressing the inquiries of other hospitals at which he seeks to maintain or establish staff privileges. In addition, plaintiff has articulated a civil rights and antitrust based interest in a public airing of his charges of racial discrimination against black physicians at a hospital serving a predominantly black community. For their part, the defendants argued in essence that public access to records on the peer review process would compromise that process by chilling the frankness and the willingness of doctors to participate.

 This Court has reviewed the Fourth Circuit's decision in Stone, supra, which the Court of Appeals cited with approval in remanding as "rejecting the notion that 'once . . . medical records are properly subjected to pretrial discovery and may be admitted in evidence in the course of a civil action, that somehow, except as between the parties . . ., they remain insulated from public exposure for all other purposes.'" Slip Op. at 18 n. 15. The defendant argues that Stone is distinguishable from this case because the Maryland peer review statute analyzed there differs from its District of Columbia analogue, 32 D.C. Code 505, because the Maryland provision withdraws the privilege of confidentiality in its entirety upon the filing of a lawsuit, whereas Section 505(b) allows a suing physician discovery of the peer review materials "for the limited purpose of adjudicating. . . an adverse action" (emphasis added).

 However, Section 505, like the Maryland statute, does not address the issue of public access to the judicial record by outside third parties once discovery is had. As far as its intended application to medical malpractice litigants, Section 505 provides only a "limited 'qualified privilege'" by which the legislature balanced

 the "rights of persons who seek compensation for medical injuries negligently caused", on the one hand, and, on the other, the need to protect the deliberations of committees of hospitals which review medical treatment.

 it is unlikely that hospitals in the District of Columbia have structured their operations in the belief that the privilege [of Section 505] is impregnable. There are sound reasons why the functioning of peer review committees will continue, notwithstanding that "extraordinary necessity" may occasionally require disclosure of their proceedings. For one thing, . . . the Joint Committee on Accreditation of Hospitals requires their [peer review committees'] use. For another, so does the Federal Government as a condition of receipt of Medicare and Medicaid funds.

 118 Daily Wash. L. Rep. at 1974.

 This Court is aware of no judicial decisions construing Section 505 under circumstances such as those presented in Stone, in which a third party newspaper sought disclosure of judicial records concerning peer review proceedings sealed by consent of both the plaintiff physician who was under review and the defendant medical employer. This case, however, presents a different, and in this Court's opinion, a more compelling argument for unsealing than that presented in Stone because the plaintiff physician under review is advancing disclosure and presents substantial personal and public interests supporting disclosure. The Jackson decision quoted above places in perspective the defendants' countervailing concern over a chilling effect on physician peer review, a concern which the Stone court ...


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