Prying eyes? Researchers can keep it confidential

June 04, 2002

CHARLOTTESVILLE, Va., June 4 -- Patient privacy is a touchstone of medicine. But what about the privacy of those who are responsible for many of the breakthroughs in health care--researchers? Too often the confidentiality of their unfinished work and of the independent experts involved in peer review, which can validate scientific findings, are at risk. It happens when medical journals are hit with subpoenas for documents in a court case. But now, according to a study published in the June 5 issue of the Journal of the American Medical Association (JAMA), by University of Virginia researchers, there are important tools researchers and journal editors can use to fight back in today's litigious society.

"It's important because authors and reviewers expect confidentiality during the peer review process. The courts have affirmed that confidentiality, and the frank and open discussion it creates, can be protected," said Dr. David Bruns, professor of pathology at the University of Virginia Health System and co-author of the paper. "Peer review is what leads to the reports that we all rely on."

Confidentiality is key because it can keep corporate power and pressure from tainting peer review. A paper, for instance, may unveil a cheap, effective cancer treatment, angering a pharmaceutical company that sells a more expensive treatment, Bruns said. The company can go to court to find the identities of the reviewers of the paper and publicly criticize their approval of the published study to try and keep the new, cheaper treatment off the market.

Authors and reviewers, therefore, need to know that their research, which is not final, cannot be seen before publication. "We do not want this system impaired," Bruns said.

Co-author Debra Parrish, a Pittsburgh, Pa. attorney, said receiving a subpoena often makes researchers feel they've done something wrong. She points out that "a lot of journals don't realize there are options to stop the onslaught against the confidentiality of peer review."

The U.Va. study found that journals and authors are protected by:

  • court rulings
  • state shield laws
  • and constitutional provisions, including the First Amendment right to free speech.

    Usually, according to the study, courts use a three-part test to measure the balance between society's need for evidence and the need to protect confidential information from unwarranted disclosure:

  • Courts examine the hardship journals suffer if compelled to produce documents
  • Courts then look at whether the disclosure is relevant and necessary
  • Courts finally weigh the interest of both sides, giving more weight to those with a distinctly social value versus a private value

    In some cases, journal authors and editors can receive the same confidentiality protection enjoyed by reporters. In one example, the author of a report rejected by JAMA demanded the identities of people who complained to JAMA editors, asserting that the author had a financial interest in the publication of his research. JAMA went into action, submitting an affidavit describing the confidentiality of its peer-review process and its commitment to privacy standards.

    JAMA prevailed in a motion to quash the subpoena. The information was kept out of the public domain after the judge ruled JAMA editors were, in essence, reporters. Journals can also use a separate scholar's privilege to keep articles out of lawyers hands, particularly if a study is unpublished or incomplete, Bruns said.

    University of Virginia Health System

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