The best way to protect physician-related materials from discovery under state peer review statutes is to develop what might be called a “culture of confidentiality” in peer review proceedings, suggests Karen Owens, JD, an attorney with the law firm of Coppersmith Brockelman in Phoenix. To expedite the development of such a culture, she recommends the following steps:
- Make sure an expectation of confidentiality is present in medical staff governance documents, from the medical staff bylaws to committee charters to departmental rules and regulations.
- Educate the medical staff leadership. Every orientation and workshop should include a section on confidentiality, and there should be periodic reminders during meetings over the course of the medical staff year. The key to this education making a difference is to explain the purpose of peer review confidentiality: to maximize the ability of peer reviewers to improve patient care by facilitating open discussion and appropriate action without fear of retaliation or legal action.
- Explain the limits of confidentiality. For example, many medical staff leaders don’t understand that peer review materials typically are discoverable in federal court proceedings; peer review is not a license to discriminate in violation of federal law. Finally, education should explain the medical staff mechanisms that protect peer review and stress the importance of complying with them. Peer review work should take place in committee and the medical staff office; the privilege typically will not protect “off-the-record,” hallway, or golf course conversations.
- Enforce peer review confidentiality. Physicians and leaders who ignore confidentiality and talk in the doctors’ lounge should be sent through the peer review process themselves; repeat offenders should not be in leadership.