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Newspaper may publish information from neurosurgeon's peer review

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Newspaper may publish information from neurosurgeon’s peer review

  • A federal judge in Colorado denied a hospital’s bid to impose a rare pre-publication restraint on the Rocky Mountain News.

Oct. 14, 2003 — The Rocky Mountain (Denver) News has a First Amendment right to publish information obtained from a peer review of a neurosurgeon, despite the privacy interests of patients and the confidentiality of the peer review process, a federal judge ruled Friday.

“There is a public interest in the regulation and policing of the medical profession, and that regulation is newsworthy, and it is information that can invade privacy,” said U.S. District Judge Walker Miller.

Miller denied the Colorado Hospital Authority’s request for an order barring the Rocky Mountain News from printing details of the peer review of Dr. Issam Awad, a prominent neurosurgeon. Awad recently resigned his $498,000-a-year post at Colorado University Medical School and its affiliated hospital amid allegations of substandard care and unprofessional behavior. The News said it received a copy of Awad’s peer review, which was completed in January 2003, in the mail from an anonymous source in September.

The peer review process for doctors is a confidential investigative device governed by state law. At University Hospital, where Awad worked, any doctor can request a peer review of any other doctor to investigate a range of suspected misconduct, such as professional incompetence or sexual harassment. The request is referred to a 31-member board, which determines whether an inquiry is warranted and, if so, oversees the investigation.

After learning that the News had a copy of the report, the hospital authority sued to prevent publication of any details. The hospital authority claimed that publication would violate the Health Insurance Portability and Accountability Act (HIPAA), which protects the privacy of patients’ medical information, as well as a Colorado state law establishing the confidentiality of the peer review process. The hospital authority also said publication could have a chilling effect on future peer review proceedings.

Judge Miller rejected those claims, agreeing with the newspaper’s argument that the privacy protection afforded by HIPAA and similar statutes cannot justify the extraordinary measure of a prior restraint on the press.

In papers filed with the court, the News said it had a right to publish Awad’s peer review report, even if its anonymous source violated state law by leaking the information. The newspaper also argued that victims of an illegal disclosure of private information could file a civil lawsuit, precluding “the drastic remedy of prior restraint of the press.”

The hospital authority has not decided whether to appeal, according to The Associated Press.

(University of Colorado Hospital Auth. v. The Denver Publishing Co.; Media Counsel: Marc Flink, Baker & Hostetler, Denver, and Robert Lystad, Baker & Hostetler, Washington, D.C.) JM

© 2003 The Reporters Committee for Freedom of the Press

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