1. Supreme Confidentiality: Refusal to Provide Peer Review Information
Did Not Violate the U.S. Constitution’s Supremacy Clause
By Fran Quarles, Esq.
Quarles Law Firm, LLC
A federal appeals court recently held that an Alabama hospital official did not violate
federal law by refusing to send confidential peer review information to another hospital’s
credentialing committee.
Alabama law protects peer review information from disclosure under some
circumstances. The physician involved in the recent case argued that federal law trumped the
state protections, and that the state law was unconstitutional because it conflicted with a federal
statute. The appeals court, however, concluded that there was no state-federal conflict.
CARDIOLOGIST DENIED COPY OF HIS PEER REVIEW INFORMATION
The physician in Liu v. Board of Trustees of the University of Alabama was a cardiologist
and professor at the University of Alabama at Birmingham (“UAB”). Dr Liu resigned while
under investigation for quality of care issues. UAB properly reported the incident to the National
Practitioner Data Bank (“NPDB”). Dr. Liu subsequently moved to California and applied for
staff privileges at the University of Southern California Hospital (“USC”). USC asked Dr. Liu to
request certain peer review information from UAB so it could further evaluate his NPDB report.
UAB’s director of the Division of Cardiovascular Research, Dr. Bourge, sent a letter further
explaining that Dr. Liu’s actions were not within UAB’s “standard of care.” Dr. Bourge,
however, refused to provide the actual peer review information, citing Alabama’s medical peer
review privilege laws, Alabama Code §§ 6-5-333 and 22-21-8. Consequently, Dr. Liu’s
application was deemed incomplete and he was not granted privileges at USC.1
1
He was able to obtain clinical privileges at several other Los Angeles area hospitals.
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Dr. Liu sued UAB and Dr. Bourge. Among other things, Dr. Lieu contended that such
application of the Alabama peer review privilege laws violated the Supremacy Clause of the U.S.
Constitution2
by obstructing the purpose of the federal Health Care Quality Improvement Act of
1986 (“HCQIA”). The lower court disagreed and ruled in favor of Dr. Bourge.3
Dr. Liu appealed
to the Atlanta-based United States Court of Appeals for the Eleventh Circuit.
THE ELEVENTH CIRCUIT: STATE PEER REVIEW LAWS DID NOT
THWART PURPOSE OF HCQUIA
The appellate court considered whether the application of Alabama’s peer review laws in
this instance thwarted Congress’ intent behind HCQIA. If the appellate court had found that the
state laws obstructed HCQIA’s purpose, then UAB would have been required to provide the peer
review information. The Eleventh Circuit noted that: (1) one of HCQIA’s purposes was to
provide immunity for peer review participants from money damages in civil lawsuits, and (2)
Alabama’s peer review laws, specifically Alabama Code §§ 6-5-333(d) and 22-21-8,
supplemented HCQIA by protecting peer review information from discovery in civil lawsuits.
The court concluded that the intent of both the federal and the state laws was to facilitate the
frank exchange of information among individuals conducting peer review and to protect those
individuals in civil lawsuits.
However, UAB’s refusal to provide peer review information was not in response to a
civil lawsuit, but in response to a request during Dr. Liu’s application process for clinical
privileges at another hospital. The Eleventh Circuit nevertheless ruled that, even in this non-
litigation context, Alabama’s peer review privilege still did not thwart Congress’ intent in
enacting HCQIA and so did not violate the Supremacy Clause. Further details regarding Dr.
Liu’s surrender of privileges did not have to be provided to the credentialing committee at USC.
CONCLUSION
It should be noted that the Eleventh Circuit’s decision dealt only with the issue of
whether Alabama’s peer review privilege violated the Supremacy Clause. The appeals court
cautioned that a physician might have other legal avenues, aside from this type of federal law-
based challenge, if a hospital wrongfully invokes the privilege in denying a request for peer
review information. A health care entity should consult with legal counsel before making a final
decision regarding the release of peer review information.
2
Article VI, Section 2, of the U.S. Constitution is known as the Supremacy Clause because it provides that the
"Constitution, and the Laws of the United States … shall be the supreme Law of the Land." It means that the federal
government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or
inconsistent state exercise of power.
3
The court ruled that UAB was immune from suit due to sovereign immunity.

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