Many emergency physicians (EPs) assume that all aspects of the peer review or quality improvement processes involving emergency department (ED) care are automatically protected from discovery during malpractice litigation. This is not necessarily the case.

“In most circumstances, the conclusions and actions taken in peer review may be privileged — but the facts and the witnesses may still be identifiable and accessible in litigation,” says Stephen A. Frew, JD, vice president of risk consulting at Johnson Insurance Services and a Rockford, IL-based attorney.

Degree of Protection Varies

Generally speaking, the finder of fact — whether a judge or jury — is entitled to any information related to a controversy, such as a malpractice lawsuit. “The law has created exceptions to that general rule, which are called privileges,” explains Joseph P. McMenamin, MD, JD, FCLM, a Richmond, VA-based health care attorney and former practicing EP.

Communication between a defendant and attorney is confidential is the best-known example. “Except in a few unusual situations, no one can force you to reveal what you said to each other; in the lawyer’s case, it is legally and ethically forbidden,” notes McMenamin. Privileges also apply to communication between a patient and physician, between spouses, and between an individual and a member of the clergy.

Apart from those situations, in the absence of legislative enactment of regulation to the contrary, “pretty much everything else is discoverable, and is potentially admissible at trial if there is one,” says McMenamin.

Most state legislatures have recognized that in order to improve the quality of health care, medical personnel should be encouraged to offer candid observations about the care provided. “You don’t want persons reviewing care to be hesitant to be frank, lest litigation be triggered, or litigation already in existence ropes these folks in as defendants, or even as witnesses,” says McMenamin.

An EP might be in the position to identify a practice that resulted in misdiagnosis of a myocardial infarction patient, for instance. “If because you took the time and trouble to point that out to me, you now make yourself a witness in a case against me for misdiagnosis of chest pain, then next time, you won’t be so eager to point out mistakes,” says McMenamin.

Since privileges are exceptions to the general rule, judges generally tend to interpret these narrowly. “In some states, courts have watered down the protections, and are moving toward a more liberal rule that allows such writings to be discoverable and/or admissible,” warns McMenamin. Thus, there has been a certain amount of erosion in the protection the law affords.

From the point of view of an attorney defending an EP, “that’s unfortunate,” says McMenamin. “It will tend to make it tougher for a defendant. And in the larger sense, it’s damaging to the goal of trying to encourage active, robust, vigorous peer review.” Here are some factors that play a role in determining whether ED peer review materials are discoverable and/or admissible:

• State laws vary considerably on what is considered “peer review material.”

In some states, any action taken for quality improvement is covered. Others only cover material generated under a defined process under the Health Care Quality Improvement Act (HCQIA). “What ED medical directors may think is protected activity, such as incident reports or informal discussions involving a case, does not always fall under the protection of their specific state statutes,” says Frew.

Under many state and HCQIA interpretations, the privileged nature of the information may be lost if EDs fail to maintain strict confidentiality rules, adds Frew. This can occur if individuals share the information in unprotected conversations or communications.

• Protection varies depending on whether litigation is brought in state or federal court.

“The federal connection can arise by treating a patient who is a resident of another state, or by jurisdiction in federal court under a federal statute such as EMTALA [the Emergency Medical Treatment and Labor Act],” says Frew.

There is no federal court rule recognizing the peer review privilege. Federal Medicare participation allows state health agencies operating under the authority of the Centers for Medicare & Medicaid Services (CMS) to access peer review materials, regardless of state privilege.

Because of the diverse definitions and requirements for peer review and quality improvement privileges, says Frew, “the only reliable defense against surprise issues in peer review and quality improvement is to get expert legal advice on the technical requirements in the state where the ED operates.”

Based on that advice, ED leaders should structure a formal process, taking advantage of all the technical definitions and limitations, to protect as much information as possible. “It is equally important to understand where that protection stops,” says Frew.

Once the structure is in place, it should be scrupulously followed by everyone in the ED.

“There should be particular emphasis on training the entire ED staff on the potential damage that can be caused by conversations, gossip, written reports, and communications that stray outside the strict boundaries of the formal peer review or quality assurance structure,” advises Frew.

Closely Examine Case Law

EPs should look closely at the literal wording of the statute that protects the peer review materials and the case law that has construed that statute, or ask their lawyers to do so for them and describe the state of the law in the jurisdiction on these questions. “Try to figure out as accurately as you can, how to keep within the protection that your state provides,” says McMenamin.

If an EP is practicing in a state that does not protect peer review materials very well, or at all, EPs might need to alter the way in which they address safety concerns. For instance, the EP might want to document only the facts regarding a medication error on an incident report, without drawing any conclusions on why it occurred or how to prevent it from happening again.

“By avoiding any sort of analysis, you avoid the risk that you give some sort of road map to the plaintiff’s lawyer,” says McMenamin. In some instances, reporting concerns verbally instead of in writing may offer some protection to the EP.

“To the extent writing is needed, prepare it under whatever umbrella your state may provide,” he says. For the most sensitive matters, appears likely, EPs should engage with counsel. “Let any investigation, analysis, conclusions, and recommendations be prepared under his direction,” says McMenamin.

On the other hand, if the state rigidly protects peer review privileges, EPs can proceed on the assumption that whatever they write down on an incident report won’t be discoverable. “It is important to take advantage of such protection as the law in your state provides,” advises McMenamin.

If the ED or hospital has a committee whose peer review materials are intended to be protected from discovery, McMenamin recommends that the committee’s name be taken verbatim from the state statute, such as “peer review committee,” “patient safety committee,” or “medical necessity committee.”

Another consideration is the founding document creating the committee, such as a board resolution that states its purpose. “Steal language from the statute or other authority and use it to create your committee,” says McMenamin.

There are a lot of variables for the EP to weigh when determining the best way to proceed, acknowledges McMenamin, “but generally speaking, if litigation arises, privileges are hard to maintain and easy to blow.”

SOURCES

Stephen A. Frew, JD, Loves Park, IL. Phone: (608) 658-5035. E-mail: sfrew@medlaw.com.

 Joseph P. McMenamin, MD, JD, FCLM, McMenamin Law Offices, Richmond, VA. Phone: (804) 921-4856. E-mail: joe.mcmenamin@venebio.com.