Court majority allows employer hospital to use peer review "as sword and shield," admitting only its own summary but not report
Judge Clay of the Sixth Circuit Court of Appeals, filed a strident Dissent, after two judges on his panel upheld the summary disposition of a discrimination/wrongful termination suit involving a security guard. The merits of the case were never evaluated because the trial judge granted summary disposition. Judge Clay filed a fairly long dissent, detailing the violations of civil procedure rules inherent in the trial judge's decision and its affirmance.
Judge Clay's primary objection related to the court allowing Saint Joseph Mercy Hospital Oakland to admit into evidence it's redacted summary of a Peer-Review Report which it would not turn over, claiming privilege. Judge Clay pointed out that no Court in America allows a litigant to use a privilege both as "sword and shield," admitting into evidence only the selected parts the litigant chooses. He also pointed out that since no Michigan Court has applied the health care "peer review" privilege to employess who aren't doctors or nurses, the lower court erred in assuming that it should apply.
Judge Clay objected to allowing the Hospital to make "tactical use" of the partial content of the Report without making it available in discovery, particularly given that even the selected parts that the Hospital offered into evidence were not clearly supportive of the Hospital's claims.