The peer review committee meets at 7 a.m., followed by a tumor board and then four administration meetings back to back. None of the physicians really want to be in the room at that moment, and one has showed up early for the next meeting and wants to stay there with her coffee and donut instead of coming back later. There’s also a human resources representative still hanging around after a prior meeting.
Those two extra people aren’t on the peer review committee, but no one wants to confront them and everyone wants to just get on with the meeting. So you figure it’s fine for them to stay while the committee meets.
Wrong decision. You’ve just lost your peer review protection, 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.
“I’m amazed at how often that happens. You cannot have non-peer review committee people present during these discussions,” O’Rourke says. “The information discussed in that committee must stay within the committee. Not only are you violating the promise of confidentiality, but you are losing your protection because you allowed that information outside the protected confines of the committee.”
Any issue addressed by the peer review committee must be handled exactly as prescribed in your bylaws and policies, she says. Any deviation can jeopardize the protection afforded to peer review.
“Whatever your process is around peer review, quality improvement, notifying physicians, follow that process to the letter,” she says. “The legal system generally favors discoverability, so if there is an opportunity to waive that privilege there is a high likelihood that it will be. Particularly if the case is egregious, the court is not going to want to protect that physician’s information from discovery.”
Some of the challenges are administrative. For instance, O’Rourke cautions against having multiple files on the same physician under investigation. Keep all the information in one file rather than splitting it into files for the credentialing aspect of the matter, the personnel and human resources part of the investigation, and so on. If the information was gathered at the direction of the peer review committee, make that explicit in the file. Include a clearly stated memo or other documentation from the peer review committee that this document is being created as part of the peer review process — this document, not a vague reference to an investigation regarding the physician. The goal is to contemporaneously provide a link between peer review and the document, so that the hospital is not left with the burden of demonstrating later that it was, in fact, created at the direction of the committee.
Remember that courts will look for any chance that the document had any additional purpose. Never create multipurpose documents because the same information is needed in peer review and also for another administrative need.
“You’re asking the court to give you special protection because quality improvement depends on this information being kept private,” she explains. “But if you can’t be bothered to protect it, why should the court? If you were sloppy with it and didn’t take this seriously, the court’s not going to deny that information to the other party.”
