Medical papers should be unsealed, court rules Decision gives newspaper access to peer review data involving ousted UM surgeon.

November 05, 1991|By Kelly Gilbert | Kelly Gilbert,Evening Sun Staff

The 4th U.S. Circuit Court of Appeals has ruled that The Evening Sun should be given access to sealed medical peer review papers filed in a 1987 lawsuit involving ousted University of Maryland Hospital surgeon Dr. H. Harlan Stone.

A three-judge appellate panel in Richmond, Va., ruled that U.S. District Judge John R. Hargrove, in Baltimore, erred by refusing the newspaper access to the documents, because they were filed openly in 1987 before they were sealed.

The papers presumably would provide details of how officials at the hospital and an outside review committee handled the internal investigations that led to Stone's ouster.

The documents were filed to support summary judgment motions in Stone's civil lawsuit against the University of Maryland Medical System Corp., and were sealed two weeks later without a public hearing.

Specifically, the appellate panel, led by Chief Judge Sam J. Ervin 3rd, reversed Hargrove's decision to keep the papers -- some 30 pages of peer review documents -- under seal and sent the case back to him to unseal them.

Maryland law usually bars the public access to peer review records. But the law makes an exception when such records are filed as "discoverable" material in court cases and when the records are "considered by a court [judge] in connection with a dispositive motion like a motion for summary judgment," the appellate panel said.

"We hold that the trial judge erred in sealing the medical review committee records from public inspection in this instance," the panel said. The appellate judges noted that if the papers had not been filed in the lawsuit, public access would have been barred forever by Maryland law.

Court officials in Richmond said the peer review documents won't be unsealed for 21 days, so parties in the case have time to decide if they will appeal the decision.

Legal sources said the 4th Circuit decision, which sets a legal precedent, could have a widespread impact on the secret peer review process in which physicians discuss medical cases and seek to correct medical errors out of public view.

That potential impact, viewed as a negative one by physicians, prompted the Maryland Hospital Association and the American Hospital Association to enter the case as "friends of the court." They strongly opposed the newspaper's efforts to gain access to the documents.

Stone, the university's former chief of surgery, was ousted in 1986, shortly after five medical malpractice suits -- involving patients of his who died allegedly as the result of surgical mistakes -- were filed against him and resident surgeons under his supervision.

Stone sued the hospital hierarchy in 1987, claiming that university officials violated his constitutional rights by demanding his resignation after the malpractice suits were filed. But Hargrove threw out his claims and the 4th Circuit upheld that decision.

Hargrove unsealed his original opinion in the case at The Evening Sun's request in late 1987. He also unsealed hundreds of pages of related documents in 1989, after the newspaper appealed the remaining seal orders and the 4th Circuit ordered him to reconsider.

But Hargrove staunchly refused to unseal the peer review documents after hospital attorneys claimed the papers should be kept secret under Maryland's peer review law. The attorneys claimed that public access to the papers would severely damage the "frank and uninhibited exchange" of medical information among peer review committee members.

Mary R. Craig and James J. Doyle 3rd, the newspaper's lawyers, argued to Hargrove and the 4th Circuit judges that Stone and the hospital gave up their statutory protection of peer review secrecy when they filed the documents in Stone's civil case.

"I think the message of it [the new 4th Circuit decision] is that doctors and hospitals who settle their differences in court don't have any special privileges for secret proceedings," Craig said yesterday.

Ralph S. Tyler, an assistant Maryland attorney general who represented the University medical system in the case, said yesterday, "I doubt that we'll take it [the appeal] any further."

In the aftermath of Stone's suit, Stone elected not to renew his Maryland license to practice medicine, his insurance company canceled his malpractice insurance and all five malpractice suits -- four of them handled by Baltimore attorney Marvin Ellin -- were settled out of court.

Stone now is administrative director of a surgical residency training program at a hospital in Arizona. A woman there said yesterday he has applied for a state medical license that would allow him to practice surgery again.

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