Executive Summary
Participants in peer review discussions after an adverse event occurs might fear that documents created during the process will be used against them later during malpractice litigation. While many states have implemented statutes to protect peer review information, some states are eroding this protection. To ensure peer review protection:
Follow the hospital’s or practice’s procedures and policies.
Limit access to the individuals directly involved in the process.
Call in outside counsel if litigation is anticipated.
Several federal laws, including the Health Care Quality Improvement Act and the Patient Safety & Quality Improvement Act (PSQIA), recognize the importance of encouraging open discussion regarding adverse medical incidents in order to create action plans to correct patient safety issues in the future. This open discussion is unlikely, however, if participants fear that documents created in the peer review process will be used against them later in litigation.
"The impact of subjecting these documents to litigation tends to be a stifling effect on candid discussions, or the creation of detailed documents in the first place," says Samantha L. Prokop, JD, an attorney at Brennan, Manna & Diamond in Akron, OH.
While most states have implemented statutes to protect peer review information, "some states, particularly Florida, have been chipping away at peer review protection," says Prokop. In 2004, Florida voters approved Article X, section 25 of the Florida Constitution, more commonly referred to as Amendment 7. This amendment provides that patients have a right to access any records made or received in the course of business of a healthcare facility or provider relating to any adverse medical incident.
"Plaintiffs in medical malpractice cases have used this access provision to gather information regarding adverse incidents at hospitals or by providers, regardless of whether the incidents directly relate to the claim at issue," says Prokop.
Healthcare providers have been fighting to keep peer review information privileged, but Florida courts have upheld the validity of Amendment 7. " Recently, Florida courts have declared that Amendment 7 not only trumps the application of traditional statutory discovery protections, but also the Health Care Quality Improvement Act," says Prokop.1
Thus, healthcare providers are faced with the risk of having peer review data, processes, and information disclosed and used to their detriment in medical malpractice cases. "This leaves healthcare providers whose states do not have peer review protection greatly exposed," says Prokop.
She recommends that physicians join a patient safety organization (PSO) and transfer all peer review data to the PSO in accordance with the PSQIA and its implementing regulations. "One of the most important aspects of the PSQIA is that it affords Patient Safety Work Product protection from discovery by an outside party, particularly in malpractice cases," says Prokop.
"Best evidence plaintiff could have"
During malpractice litigation, the plaintiff’s attorney often will attempt to obtain access to the peer review file. Richard C. Kraus, JD, an attorney at Foster Swift Collins & Smith in Lansing, MI, says, "Telling a jury that the hospital reviewed the defendant physician’s care and decided there were standard of care breaches is the best evidence that a plaintiff could have. Courts are usually unwilling to allow discovery of the peer review committee’s evaluation of a physician’s performance when a plaintiff wants the information to prove negligence."
In contrast, courts may require disclosure of factual information in incident reports or witness statements obtained by a peer review committee. "The reasoning is that such reports or statements, particularly when prepared close in time to the incident, will be more accurate and reliable than deposition testimony months or even years later," says Kraus.
If a plaintiff alleges that a hospital negligently kept a physician on staff by failing to properly review his or her performance, the peer review file can be critical evidence. "Courts in various states have reached different conclusions about the discoverability of peer review materials," says Kraus.
The discoverability of peer review materials is commonly disputed in federal court cases. "A federal court is not required to apply privileges or protections created under state law," says Kraus. Depending on the nature of the case and the claimed justification for discovery, a federal court may require disclosure.
The most important factor is the applicable state law, according to Kraus. "Some states have very broad protections against disclosure or use of peer review materials; others are very restrictive," he says.
Courts usually view the peer review process as retrospective and focus on improving patient care in general or dealing with a specific provider’s overall practice.
Because the care in a single case is unlikely to reflect a provider’s overall practice, "courts are sometimes skeptical when peer review protection is claimed for review of a single case, particularly when there is some involvement by risk or claims management," says Kraus.
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Bartow HMA, LLC v. Kirkland, Florida Second District Court of Appeal, Case No. 2D13-674 (Nov. 15, 2013).
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Richard C. Kraus, JD, Foster Swift Collins & Smith, Lansing, MI. Phone: (517) 371-8104. Fax: (517) 367-7104. Email: [email protected].
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Samantha L. Prokop, JD, Brennan, Manna & Diamond, Akron, OH. Phone: (330) 253-3766. Fax: (330) 253-3768. Email: [email protected].
