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Novotny v. Sacred Heart Health Services

AARP Supports Patients' Access to Physician Credentialing Information


In a case of first impression, AARP filed an amicus brief in the South Dakota Supreme Court advocating for the Court to recognize a crime-fraud exception to the medical peer review privilege in circumstances where the peer review committee engaged in malice or fraud.  Peer review is the process by which the medical profession evaluates the services and qualifications of physicians as a means to improve the quality of health care.  Peer review materials are often protected from disclosure by a legal privilege to encourage participants to engage in rigorous quality assurance without fearing retaliation.


The plaintiffs allege that hospital peer review committees gave staff privileges to a spine surgeon who they knew was unfit to practice medicine because they wanted the profit he could bring.  The spine surgeon then caused patients to suffer debilitating spinal injuries by performing surgeries that were medically unnecessary and poorly performed.  The injured patients later sued the surgeon, the hospitals, and members of the peer review committees.  During the litigation, the hospitals and peer review committee members refused to produce information from the peer review committees because they claimed it was privileged.

What’s at Stake

In our brief, AARP argues that the fundamental purpose of the peer review privilege is eroded when medical professionals use it not to improve the quality of health care, but to avoid accountability for their wrongful conduct.  The crime-fraud exception remedies this abuse by allowing a limited waiver of the privilege under egregious circumstances where the injured patients can first prove that the peer review committee members engaged in fraud or malice.  AARP also noted that older adults are particularly vulnerable to hospitals’ physician credentialing and retention decisions because of their high use of hospital services.  Without the crime-fraud exception, older adults are prevented from obtaining evidence necessary to prove their case when they are harmed by a hospital’s or peer review committee’s intentional decision to hire an incompetent physician.  Thus, the integrity of the peer review process is preserved when the privilege is only applied in cases where it furthers the quality of health care.  Maame Gyamfi argued on behalf of AARP. 

Case Status

Novotny v. Sacred Heart Health Services is before the Supreme Court of South Dakota.

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Find cases in which AFL has advocated in courts nationwide for the rights of older persons, and filed AARP’s amicus curiae (“friend of the court”) briefs that help courts decide precedent-setting cases. The cases within the drop-down categories below are in alphabetical order for ease of searching.

Strengthening Law and Policy through
Legal Advocacy

Our legal advocacy initiatives  - conducted by AARP Foundation Litigation (AFL) - reflect nearly 20 years of work in federal and state courts across the country. Through our efforts, we support the Foundation’s four impact areas: Tackling Senior Hunger, Paving the Way to Stable Income, assuring the adequacy and availability of Safe and Afffordable Housing and Reconnecting People to Families and Communities, and ensure that those 50 and older have a voice in the laws and policies that affect their daily lives.