Courts typically see confidentiality issues arise in the context of discovery disputes in medical malpractice cases, says Karen Owens, JD, an attorney with the law firm of Coppersmith Brockelman in Phoenix. Naturally, plaintiffs’ counsel would like nothing better than to get into the peer review files they think will prove their case, so they will look hard for ways to squeeze past the statutory protections, she says.
“We’ve found that the judges who decide discovery disputes are accustomed to seeing other privileges, like the attorney/client privilege, which is interpreted narrowly,” Owens says. “Using prior court opinions and public policy reasoning, a hospital attorney must convince the judge that peer review confidentiality should be interpreted broadly because of its critical importance in protecting patient safety.”
Owens says that, in her experience, courts are more likely to agree to protect medical staff documents when hospitals do not “overreach.” For example, rather than making a blanket objection against production of the entire credentials file, Owens will produce documents that the plaintiff could obtain elsewhere — things like CME certification, copies of professional licenses, or information pulled from public Internet sites.
“We also freely provide medical staff governance documents like bylaws, rules and regulations, and policies. Then we can honestly and accurately argue to the judge that we have disclosed every item we possibly can and are prohibited by law from doing more,” she says. “Courts may not find the peer review privilege intuitively clear, but they certainly will defer to the will of the state legislature.”
Owens and her colleagues have had good success with this approach. In one case when a plaintiffs’ lawyer fought hard to get into a root cause analysis file, they showed the judge the medical staff policy stating that the root cause analysis (RCA) was confidential.
“We explained that the many emails setting up meetings and addressing matters between meeting were ‘in connection’ with the confidential process and therefore covered under our statute,” Owens says. “We explained the critical public process reason for including the RCA process as a core peer review activity. The court agreed, and medical staff members still participate in RCAs as a result.”
