Some well-intentioned hospitals or physician practices carry out peer review on an "ad hoc" basis and select the best way to deal with a particular problem, says Richard C. Kraus, JD, an attorney at Foster Swift Collins & Smith in Lansing, MI.
"While that approach may be very effective from a clinical perspective, it is not likely to result in peer review protection," Kraus warns.
Physicians can consider these approaches to increase the likelihood that peer review materials will be protected:
• Understand the limits of peer review protection.
"The facts — what happened in a specific adverse event — are usually not protected," says Kraus. Rather, protection against disclosure and use in litigation is given to the evaluative process.
"The protection afforded to peer review is designed to encourage frank and candid review. It is not intended to protect against disclosure of adverse events," says Kraus.
• Follow the hospital’s or practice’s procedures and policies.
"The review has to be done by the right committee and for the right purpose," says Kraus. The peer review files should be separately and confidentially maintained. Only protected materials should be kept in the file.
"There is a mistaken belief that everything reviewed during the process is protected. That is not true," says Kraus. "Stamping documents as confidential’ or peer review material’ is not enough."
• Limit access to the peer review material to the committee and individuals directly involved in the process.
"The case law is not well-settled as to whether peer review is a privilege’ that can be waived, like the physician-patient privilege," says Kraus.
Unless a hospital treats materials as confidential, however, it is unlikely that a court will accept a later claim of peer review protection.
• Call in outside counsel when a serious adverse incident occurs for which litigation is anticipated.
Samantha L. Prokop, JD, an attorney at Brennan, Manna & Diamond in Akron, OH, says, "Have the attorney conduct an investigation under attorney-client privilege."
