Peer Review Record Withheld by University of Michigan Raises Federal Due Process Questions

The University of Michigan has maintained that a peer review evaluation conducted in 2018 by psychiatrist Dr. Kirk Brower—while Bradley Foerster was on approved medical disability—cannot be disclosed. The University’s position raises questions regarding compliance with federal standards governing professional review actions and due process protections.

Following this determination, a Freedom of Information Act (FOIA) request was submitted seeking access to the peer review record. The University denied the request, citing a “peer review exemption.” This denial confirmed the existence of a peer review evaluation while withholding the underlying record.

An appeal of the FOIA denial was subsequently submitted to University President Domenico Grasso. That appeal is now overdue, and no response has been issued.

In response, an additional FOIA request was submitted seeking records reflecting the President’s response—or lack thereof—to the appeal. This request is intended to clarify the University’s handling of the peer review record and the outstanding FOIA appeal.

Legal Standard Under Federal Law

The Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11112, establishes standards governing professional review actions.

Under the statute, a professional review action must be taken:

in the reasonable belief that the action furthers quality health care
after a reasonable effort to obtain the facts
after adequate notice and hearing procedures are afforded to the physician
in the reasonable belief that the action is warranted by the known facts

The statute further requires that physicians receive notice of:

the proposed action
the reasons for the action
the right to request a hearing
the procedures governing that hearing

These provisions establish baseline due process protections in professional review proceedings.

Access to Records and Procedural Protections

The HCQIA also provides for procedural safeguards, including representation and documentation of proceedings.

Under 42 U.S.C. § 11112(b)(3)(C), a physician subject to a professional review action is entitled:

to representation by an attorney or other person of the physician’s choice
to a record of the proceedings, with copies available upon payment of reasonable costs

These provisions establish that peer review proceedings must be documented and that a record should be available to the physician.

Record Status

The University of Michigan has confirmed the existence of a peer review evaluation while denying access to the record under a claimed peer review exemption. The FOIA appeal remains outstanding without response.

The absence of a disclosed record, combined with unresolved questions regarding notice and procedural protections, raises issues concerning the application of the statutory framework governing professional review actions.