No State Medical Privilege in § 1983 Actions; CCA Compelled to Provide Discovery

by Mark Wilson

A Tennessee federal court refused to “recognize the state peer review privilege” in a 42 U.S.C. § 1983 action, and compelled Corrections Corporation of America (CCA) to provide information relating to any audits or investigations of a CCA-operated facility.

G. Michael Luhowiak brought federal suit on behalf of the estate of Roland Lebron Clemons, the infant child of former prisoner Countess Clemons, alleging that the defendants’ deliberate indifference and several CCA policies, practices and customs caused his death. Clemons also sued for inadequate medical care she received at the CCA-operated Silverdale Detention Facility in Chattanooga. The cases were consolidated.

Plaintiffs sought discovery of information and materials relating to “any audits or investigations (that) were conducted by the Defendants or any government agencies,” “certain details of those audits or investigations,” and “all documents and things with respect to any such audits or investigations.” Plaintiffs also sought “any documentation of any deficiency notices received by the Defendants from any contract monitors and/or governmental agencies regarding the operations of CCA.”

CCA resisted discovery, claiming that the requested materials are privileged under Tennessee’s “medical peer review privilege.” Plaintiffs moved to compel discovery.

“In federal question cases, questions of privilege are governed by federal common law, not state law,” the court found. “Even though there may be state law claims, it is not a pure medical malpractice action,” the court observed. Federal common law controls privilege even in cases including “both a federal question and pendent state law claims.” See Hancock v. Dodson, 958 F.2d 1367,1373 (6th Cir. 1992).

Noting numerous decisions of other federal courts that have refused to recognize similar peer review privileges, the Court found that “there is no federal ‘peer review privilege’” and declined “to adopt one in this case.”

“The evidence sought may be highly relevant to issues of deliberate indifference and alleged policies, practices or customs.” Therefore, the court compelled CCA to produce the requested materials, concluding that “the need for discovery outweighs the interests protected by the privilege in this case.” See: Clemons v. Corrections Corporation of America, USDC No. 1:11-cv-339 (E.D. Tenn. 5/21/2013).

The cases were brought by the Human Rights Defense Center, the parent organization of Prison Legal News; the cases eventually settled in 2014 for $690,000. [See: PLN, Dec. 2014, p.28].

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