Quality peer review depends on people being able to openly discuss issues without fear that the information will be made public, so the law provides a shield that keeps lawyers and others from demanding access. Healthcare systems rely on that peer review privilege to ensure quality and safety, but they sometimes inadvertently relinquish that protection by breaking the rules that keep that information private.
State laws regarding peer review will vary, but California’s protection under Evidence Code sec 1157 is typical of most states, says Sara Hersh, JD, an attorney with the law firm of Nelson Hardiman in Los Angeles. Peer review proceedings and the records of peer review committees are protected from discovery primarily to encourage the free exchange of ideas and opinions among healthcare providers regarding care and treatment rendered to patients by members of a medical staff without fear of public scrutiny and to ensure safe and competent delivery of care. Participants in the peer review meetings cannot be compelled to testify in a civil lawsuit as to what happened or said in the meeting, Hersh explains. The protection, however, is not absolute.
Hersh outlines these limitations to the peer review privilege in California:
- Although the member of a committee cannot be compelled to testify, any member can do so voluntarily because the privilege against testifying is held by each individual and not by the committee.
- The protection does not apply to statements made by the physician, present at the meeting, who is the subject of the peer review discussion.
- The protection against discovery of the proceedings of a peer review committee does not apply to lawsuits brought by physicians claiming wrongful denial of hospital privileges.
- The protection could arguably not apply if the committee was not in conformity with the facility’s bylaws.
- The protection does not apply to criminal proceedings.
- The Medical Board of California can inspect and copy certain documents (statement of charges, documents in evidence, any opinion, finding or conclusion for use in a subsequent disciplinary hearing or investigation by law enforcement).
Though there are common themes, courts will look to the specific and usually very strict language of your particular state when determining if material is protected, cautions Kenneth N. Rashbaum, JD, partner with the Barton law firm in New York City. Knowing the details of your own state’s peer review statute is the foundation of any effort to protect the privilege, he says.
“People go astray when they write something that says at the top, ‘For peer review and quality control purposes,’ and think that’s going to do it. That doesn’t do anything by itself,” Rashbaum says. “They also distribute the records to places they shouldn’t go. They’ll CC or BCC it, just flat-out hand it to somebody, or discuss it with somebody. The privilege is waived at that point.”
Rashbaum also has seen instances in which someone makes negative comments about a physician or other clinician, assuming it will be protected by the peer review privilege. But if it is never used in a peer review proceeding, there is no protection, he says. Physicians participating in peer review often are insufficiently educated about the law regarding the process, he notes.
DON'T ASSUME RECORDS ARE PROTECTED
Physicians attending peer review meetings must be reminded of the confidentiality of the proceedings, Hersh notes. Many hospitals require a written affirmation signed by each attendee. In the event of civil litigation such as a medical malpractice claim, in order to prepare for deposition, defense counsel should meet with witnesses and participants in any peer review committee in which the care of the patient was discussed.
“In my experience, the protection is often lost when a physician participant in a peer review committee discussion takes it upon himself or herself to reveal peer review discussions outside of the committee meeting,” Hersh says. “The protection also is lost when committee documents are distributed to persons who are outside the committee, when participants leave the meeting room with documents in hand, or when a protected document is filed in a personnel, administrative or other unprotected location in lieu of the medical staff office.”
It is common to see hospitals and other healthcare organizations fail in their attempts to exercise their peer review privilege, says Delphine O’Rourke, JD, managing partner of the Philadelphia office of Hall, Render, Killian, Heath & Lyman, who also works as in-house general counsel and chief advocacy officer of Our Lady of Lourdes Memorial Hospital in Binghamton, NY. A common scenario is a hospital trying to retroactively benefit from the privilege while investigating an issue that did not start out as a peer review matter, she says. Perhaps human resources is researching an issue and eventually finds that a physician is involved and must be interviewed.
“They say, ‘Oh, this must be peer review protected because we’re investigating a physician’s behavior,’” O’Rourke says. “At that point it’s too late. They’ve been investigating this issue for three months and just now put it on the peer review committee’s agenda, thinking it’s protected now. That’s not the case.”
The reason is that peer review analysis focuses on the purpose of the document, and the purpose must be peer review or quality improvement, she explains. Courts historically have asked whether the document was created for those purposes, whether it was created by the peer review committee or at its direction, and whether it was created by following the hospital’s processes for peer review. If so, the document is protected. But O’Rourke says there is a trend now for courts to be especially stringent and decline peer review protection if the document could have been created for other purposes.
“Even if there is no evidence that it was created for other purposes, if there is a possibility that the document could have been used in insurance claims or a malpractice defense, the courts are arguing that there could have been more than one purpose for creating the document,” she explains.
The difficulty for hospitals is knowing when to initiate an investigation or documentation process as a peer review function, O’Rourke says. Running every physician-related matter through the peer review committee is not practical, so hospitals need a trigger mechanism to determine which issues must go through the committee. Once the peer review process is triggered, follow all procedures carefully. (See the story later in this issue for more on how to follow peer review procedures carefully.)
COMMITTEE MINUTES RELEASED ONLINE
Industry interest in centralization, information collection, and transparency is making protection of state law peer review confidentiality much more difficult, says Karen Owens, JD, an attorney with the law firm of Coppersmith Brockelman in Phoenix. Administrators sometimes don’t consider confidentiality as they centralize peer review-related processes and work to increase transparency across the hospital system. While acknowledging that these approaches help protect patients and improve care, Owens urges hospital clients to be intentional and inclusive in their decisions to give up confidentiality. For example, she worked with one hospital that decided to put certain medical staff committee minutes on its system-wide intranet, available to all employees. The fact that protected peer review information appeared in those minutes was not considered until they were sought by a plaintiff’s attorneys in discovery.
“It was only then that we — and the medical staff leaders — learned about the placement of the minutes online,” she recalls. “Ultimately, the decision was made to keep the general minutes online but create separate ‘executive session’ minutes for confidentiality activities. In the meantime, though, the plaintiffs won the discovery dispute.”
Owens recommends a strong focus on educating physicians and others about the purpose, and the limitations, of peer review protection. (For more on creating a “culture of confidentiality,” see the story later in this issue. For advice on how to protect peer review documents in court, see the story later in this issue.)
One other increasingly common worry about losing peer review confidentiality protections involves employed physicians, Owens says. The rate of hospital employment of physicians is skyrocketing, of course, and employed medical staff members then face two kinds of oversight: by the medical staff and by the hospital employers. Hospital administrators understandably want to make decisions about continuing physician employment with all information in hand, she says, including information about quality, and administrators may see employment decisions as a more efficient means of addressing quality problems than traditional peer review. But if hospitals do not prospectively put structures in place to determine to what extent and how quality information gets into non-confidential employment processes, courts are very likely to refuse to protect such information in discovery disputes, Owens explains.
“And those disputes may take place not just in malpractice cases, but in employment cases as well,” she says. “Whether the court finds a formal waiver of confidentiality or decides that the hospital never intended the information to be confidential, the result is the same: The information is in the public realm, and physicians are less likely to want to put time and energy into reviewing their colleagues.”
- Sara Hersh, JD, Nelson Hardiman, Los Angeles, CA. Telephone: (310) 203-2808. Email: email@example.com.
- Delphine O’Rourke, JD, Managing Partner, Hall, Render, Killian, Heath & Lyman. Philadelphia, PA. Telephone: (610) 941-2785. Email: firstname.lastname@example.org.
- Karen Owens, JD, Coppersmith Brockelman, Phoenix, AZ. Telephone: (602) 381-5463. Email: email@example.com.
- Kenneth N. Rashbaum, JD, Partner, Barton, New York City. Telephone: (212) 885-8836. Email: firstname.lastname@example.org.