Gannon v. Copley Hospital

Termont Superior Court
Filed 06/16/25
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-00870
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Liam Gannon, MD v. Copley Hospital Inc.

Opinion and Order on Motion (#3) to Compel

Plaintiff Dr. Liam Gannon was fired from his emergency room appointment at

Defendant Copley Hospital Inc. ("Copley") for, according to Copley, no cause. He asserts

several claims in this case based on his allegations that Copley, in fact, terminated his

employment in retaliation for voicing objections to a plan to adopt a new electronic health

records system for the emergency department, for complaining that the new emergency

room director communicated with him in an unprofessional manner, and because he had

complained that she had exhibited certain practices that could affect patient safety. The

parties have arrived at a discovery impasse based on their different views of the

statutory peer review privilege, 26 V.S.A. § 1443. Dr. Gannon has filed a motion to

compel.

Dr. Gannon made several discovery requests in response to which Copley withheld

extensive, responsive documents (all set out in a 56-page log) under a claim of peer

review privilege. As presented, the dispute is not about this or that record. It is about

the breadth of the peer review privilege or how it operates. Generally speaking, "[t]he

obvious purpose of the statutory medical peer review privilege is to 'promote candor and

confidentiality' in the peer review process and 'to foster aggressive critiquing of medical

care by the provider's peers." Pardo v. General Hosp. Corp., 841 N.E.2d 692, 700 (Mass.

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2006) (citations omitted). Dr. Gannon argues that the privilege does not apply at all to

this kind of case (employment discrimination). He further argues that if it can apply in

an employment discrimination case, then it does not apply to all the records withheld by

Copley because: (1) some are records of the wrong kind of committee (not peer review

committees), and (2) some are records other than those of a peer review committee–even

if the records were in the possession of a peer review committee.

Copley counters that the privilege applies no matter what kind of case is

underway. It further argues that the privilege extends to any sort of hospital committee

so long as that committee was fulfilling a peer-review function as set forth in the

hospital’s bylaws. The withheld records at issue now were classified at some point as

subject to the statutory peer review privilege, presumably by one of five hospital

committees.1 The Court makes the following determinations.

A. Whether The Privilege May Extend To An Employment Discrimination Case

The statute, in relevant part, provides:

The proceedings, reports, and records of committees defined in section
1441 of this title . . . [Clause 1] shall be confidential and privileged, and
[Clause 2] shall not be subject to discovery or introduction into evidence in
any civil action against a provider of professional health services arising out
of the matters that are subject to evaluation and review by such committee,
and no person who was in attendance at a meeting of such committee shall
be permitted or required to testify in any such civil action as to any findings,
recommendations, evaluations, opinions, or other actions of such committees
or any members thereof. However, information, documents, or records
otherwise available from original sources are not to be construed as immune
from discovery or use in any such action merely because they were
presented during the proceedings of such committee, nor shall any person
who testifies before such committee or who is a member of such committee

1 The record is silent as to who specifically designated which records are privileged, when

the designations were made, and in relation to what sort of peer review process the
records arose. At oral argument, counsel for Copley could shed no greater light on that
issue.
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be prevented from testifying as to matters within his or her knowledge, but
such witness shall not be asked about his or her testimony before such
committee or about opinions formed by him or her as a result of such
committee hearings.

26 V.S.A. § 1443(a) (Clauses 1 and 2 as indicated by the Court).

Dr. Gannon focuses on Clause 2 and argues that it is intended to limit the scope of

Clause 1 insofar as it describes the type of proceeding in which the privilege applies.

This is not that type of proceeding, he asserts, because this case arises out of his

purportedly no-cause termination rather than patient safety and peer review activity.

He further cites Mattice v. Memorial Hosp. of South Bend, 203 F.R.D. 381, 385 (N.D. Ind.

2001) for the proposition that peer review statutes generally do not apply in the

employment discrimination context.

Copley maintains that this case does arise out of peer review activity because Dr.

Gannon’s complaints all arise, ultimately, out of concerns about patient safety and care.

More importantly, though, Copley focuses on Clause 1, which appears to command in

more absolute terms that if the records reflect or are the “proceedings, reports, and

records” of a § 1441 peer review committee, then they are privileged. Copley dismisses

Clause 2 as merely providing one helpful example of a situation in which Clause 1 would

apply.

Dr. Gannon’s citation to Mattice is not persuasive. Mattice is a federal case in

which the court considered whether to adopt a peer review privilege for federal law

purposes under Fed. R. Evid. 501 in an Americans with Disabilities Act case. But there

can be no question in this case that a privilege already has been adopted by the

legislature in § 1443(a). See Pardo v. General Hosp. Corp., 841 N.E.2d 692, 704 (Mass.

2006) (“Those [federal discrimination] cases are irrelevant because our Legislature has
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created a statutory medical peer review privilege that we must effectuate.”). Its scope—

not whether it exists—is the issue here.

In the Court’s view, each party’s proffered interpretation of the statute arguably

reads one or the other clause out of the statute. See In re S. Burlington-Shelburne

Highway Project, 174 Vt. 604, 606 (2002) (“We presume that legislative language is

inserted advisedly and not intended to create surplusage.”). Thankfully, however, the

Court is not faced with resolving that dilemma in this case. The matter can be resolved

based on the application of Clause 2 to this action.

Clause 2, even assuming it is intended to operate as some kind of limitation on

Clause 1, does not reveal that the privilege cannot apply in this case. Clause 2 refers to

“any civil action against a provider of professional health services arising out of the

matters that are subject to evaluation and review by such committee.” There can be no

doubt that this is “any civil action” and it is being litigated against “a provider of

professional health services.”

The Court is not persuaded by Dr. Gannon’s argument that, nevertheless, this case

cannot fairly be said to have arisen out of matters “subject to evaluation and review” by a

peer review committee. In particular, Dr. Gannon’s objections that preceded his

termination plainly involved matters of patient safety, including the anticipated

performance of the new health records system, the new medical director’s charting or

other recordkeeping practices, as well as communications between them that were

allegedly taxing their professional relationship. That the parties dispute the employer’s

motivations for the termination decision does not change that fact. This part of the

statute does not means-test every withheld record. It focuses on how the case arose. As

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a result, this case arose out of issues, at least to some reasonable extent, properly subject

to evaluation by a peer review committee.

B. The Nature Of The Committee Versus The Nature Of The Records

The Court is also persuaded that the privilege is intended to apply to the records of

a peer review committee rather than the records of just any committees that are deemed

(by someone) to consist substantively of peer review. Section 1441 defines peer review

committee in relevant part: “As used in this subchapter, the term ‘peer review committee’

shall mean . . . a committee . . . of a hospital . . . that is formed to evaluate and improve

the quality of health care rendered by providers of health services or to determine that

health services rendered were professionally indicated or were performed in compliance

with the applicable standard of care or that the cost of health care rendered was

considered reasonable by the providers of professional health services in the area.” Peer

review records are nowhere defined. The statutory scheme focuses, for privilege

purposes, on the nature of committee rather than the nature of the records. This

facilitates the goal of encouraging the candor of those who participate in the process. If

the records at issue are those of a peer review committee, they are privileged according to

the terms of § 1443(a).

Because the statute protects the records of peer review committees rather than

peer review records regardless of the entity that produces them, the definition of peer

review committee is critical to the appropriate application of the privilege. In short, a

peer review committee is a committee that was formed for the purpose of undertaking

peer review activity, the evaluation and improvement of the quality of health care

rendered. It must be the mission of the committee to do formal peer review.

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The withheld records in this case are from the Department of Surgery, the

Department of Medicine, the Medical Staff Executive Committee, the Peer Review

Committee, and the Clinical Quality Review Team. Dr. Gannon concedes that the Peer

Review Committee and the Clinical Quality Review Team are formal peer review

committees. He argues, however, that the Department of Surgery, the Department of

Medicine, and the Medical Staff Executive Committee are not.

In response, Copley does not attempt to contend that the Department of Surgery,

the Department of Medicine, and the Medical Staff Executive Committee are peer review

committees as contemplated by statute. Instead, it cites its own bylaws in support of its

argument to the effect that the nature of the committee is irrelevant. In that regard,

Bylaws, Art. XII, § 2(A) (emphasis added) provides:

Whenever a committee’s functions include performance improvement
activities, the evaluation or improvement of the quality of patient care, the
determination of whether healthcare services were performed in compliance
with applicable standards of care, the determination of whether the cost of
care was considered reasonable, the determination of whether a healthcare
provider’s actions call into question such provider’s fitness or ability to
provide health care services, such committee shall, when performing such
functions be deemed to be acting as a peer review committee; and the
proceedings, records and reports relating to such functions shall be deemed
to be subject to peer review confidentiality and non-discovery protections,
whether or not a further statement to the same effect is contained in these
bylaws or the committee’s records. The Medical Staff Executive Committee,
the joint conference committee, the utilization review committee, the peer
review committee, the infection control committee, and the blood usage and
surgical case review committee all perform peer review functions and are all
deemed peer review-type committees whose proceedings, records and
reports are deemed subject to peer review confidentiality and discovery
protections.

In other words, it argues, whenever any committee does something in the nature

of peer review, the peer review privilege applies. If that is an accurate understanding of

the bylaws, they turn the statutory framework on its head. The statutory framework is
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dependent on the nature of the committee, not the nature of the records. To the extent

the bylaws attempt to bootstrap such records into being those “of a peer review

committee” by fiat, they are inconsistent with the statute. The statute plainly demands

rigid formality as to boundaries of peer review committees.

Generally, the statute extends the privilege to all the records “of” a peer review

committee regardless of content, which is why it is important to distinguish committees

as having been formed to conduct formal peer review or not. “Because the dividing line

between peer review and normal business operations can be unclear, courts generally

apply the peer review privilege only when the formalities of a peer review process are

clearly apparent. For example, conversations between a department chief and nurses

will not be protected from discovery if there were no apparent peer review formalities—

even when the department chief views his job as ‘provid[ing] good quality service . . . and

coordinat[ing] services between departments’ and characterizes the conversations as

‘quality control.’ Formalities such as designated committees and explicitly labeled peer-

review reports act as a signal to medical employees, telling them when their opinions will

be protected from discovery.” Robinson v. Springfield Hosp., No. 1:09-CV-75, 2010 WL

503096, at *2 (D.Vt. Feb. 5, 2010); see also Prouty v. Southwestern Vermont Medical

Center, Inc., No. 89-2-13 Bncv, 2013 WL 7346974, at *2 (Vt. Super. Ct. Oct. 30, 2013)

(“[B]lanket assertions are insufficient to invoke the privilege.”).

Generally, the “burden of establishing that a privilege applies in a particular case

is on the party asserting it.” State v. Emerson, 150 Vt. 128, 129 (1988); see also Giusti v.

Akron Gen. Med. Ctr., 896 N.E.2d 769, 775 (Ohio Ct. App. 2008) (“The party claiming the

[peer review] privilege has the burden of proving that the privilege applies to the

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requested information.”); Magowan v. John Larkin, Inc., No. 562-6-17 Cncv, 2018 WL

8666300, at *3 (Vt. Super. Ct. June 20, 2018) (“Defendant bears the burden of showing

that the seven documents it has chosen to withhold are ‘proceedings, reports, [or] records

of [a peer review committee.]’”); see also Bansal v. Mount Carmel Health Systems, Inc.,

No. 09AP–351, 2009 WL 5062122, *5 (Ohio 2009) (“To prove the privilege, the health care

entity must first establish the existence of a committee that meets the statutory

definition of ‘peer review committee’ contained in [applicable law.]”).

In this instance, Copley has come forward with nothing to establish that the

Department of Surgery, the Department of Medicine, and the Medical Staff Executive

Committee genuinely are peer review committees under 26 V.S.A. § 1441. It has relied

solely on the fact that someone at some point designated each withheld record as subject

to the privilege and placed a stamp on it. That is insufficient.2

The privilege does not extend to records of the Department of Surgery, the

Department of Medicine, and the Medical Staff Executive Committee. Any such records

withheld exclusively under a claim of peer review privilege must be produced.

C. The Scope Of What May Be Properly Withheld

Dr. Gannon concedes that the Peer Review Committee and the Clinical Quality

Review Team are formal peer review committees subject to the privilege. He argues,

however, that Copley has withheld the records of those committees in an overbroad

manner.

2Permitting the alternative approach argued for by Copley would also pose difficulties in
determining whether, for example, documents that were purportedly part of the
Department of Surgery’s peer review process would be confidential even if the
Department were reviewing materials that were generated in that Department as an
original matter. 26 V.S.A. § 1443(a)
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Records in the possession of a peer review committee are not necessarily

privileged. The statute draws a distinction between: (1) the "proceedings, reports, and

records of' the peer review committee, which are privileged, and (2) "information,

documents, or records otherwise available from original sources" other than the peer

review committee, which are not privileged. 26 V.S.A. § 1448(a) (emphasis added). In

other words, if the record was produced by a source other than the peer review

committee, that "original source" material is not privileged. The only exception would be

for material produced by an original source but exclusively for the use of the peer review

committee. The Court agrees with Dr. Gannon that it appears that records have been

improperly withheld under the peer review privilege that, in fact, are original source

documents that should have been produced. These two types of records need to be

treated separately for privilege purposes.

Conclusion

Dr. Gannon's motion to compel is granted. Within 45 days:

(a) Copley shall produce all records of the Department of Surgery, the Department
of Medicine, and the Medical Staff Executive Committee that have been withheld solely
under a claim of peer review privilege;

(b) Copley shall produce all original source records in the possession of the Peer
Review Committee and the Clinical Quality Review Team, excluding any records
produced by an original source for either committee's exclusive use that have been
withheld solely under a claim of peer review privilege; and

(c) Copley shall revise its withheld document log accordingly.

Electronically signed on Monday, June 162025, per V.R.E.F. 9(d).

Ti¢nothy Tomasi
Superior Court Judge
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