ED peer review materials can end up being discoverable during malpractice litigation, if requirements aren’t closely followed. To prevent this:
- conduct investigations in a way that maximizes existing peer review protections;
- know the exact language of state statutes, and stay current with court rulings;
- instruct staff to share safety concerns in a way that ensures they’re protected.
Is an ED reviewing data on unplanned return visits, patient complaints, or complications as part of the department’s peer review process? If an EP comes out of a meeting and carelessly leaves documents out in the open, this carries important legal implications. “It is now no longer protected,” explains Rick Sheff, MD, chief medical officer at The Greeley Company.
The same is true if an EP attends a peer review meeting about a colleague and explains to an ED nurse what was covered. “The information the nurse has heard is now outside of peer review protection,” Sheff warns.
These seemingly harmless actions by ED staff open the door for plaintiff attorneys to obtain peer review materials that otherwise would be protected from discovery. “People handle confidential peer review carelessly and cavalierly all the time,” Sheff adds.
Laura Walker, MD, consultant for the department of emergency medicine at Mayo Clinic and emergency medicine quality chair for Southeast Minnesota Mayo Clinic Health System, warns that if the ED’s peer review process is not “rigorously managed,” the information discussed may be legally discoverable.
“Understanding when and with whom you can safely discuss the case under review, and being vigilant to limit your conversations to these protected conversations, is the first and most important rule of thumb,” Walker explains.
One thing is certain: The ED defense team will face a hard battle to protect every piece of peer review information. In Sheff’s experience, “Every plaintiff attorney worth their salt will do everything they can to get their hands on any and all peer review information. They will push, and push hard.” To increase the likelihood that peer review information is protected from discovery, EDs can take the following steps:
- Conduct investigations in a way that maximizes existing peer review protections.
If a hospital risk manager conducts an assessment of an adverse outcome in the ED, for instance, the report isn’t necessarily protected from discovery.
Michael R. Callahan, JD, a partner at Katten Muchin Rosenman in Chicago, says, “You can’t just take a document that was produced for a different purpose, run it through a peer review committee, and claim it’s protected.” However, there’s a simple fix: “If it was prepared at the request of the peer review committee, it is protected,” Callahan says.
- Know the exact language of the state’s statute on peer review, and stay current with case law.
Every state has enacted legislation that protects peer review information from discovery, but the protections are not all the same. “All 50 legislatures have recognized that it is a public good for physicians to measure each other’s performance and hold each other accountable,” Sheff says. “The challenge is that there are 50 different laws.”
These vary as to whether peer review information also can be used for other types of performance improvement, such as patient satisfaction or ED throughput. “In some states, you lose protection when you use the same data for peer review for other purposes,” Sheff explains.
The degree of protection also varies by case law. This is ever-evolving, sometimes to the detriment of EP defendants. “There are states, like Kentucky, where case law has gutted the protection of peer review information,” Sheff notes. “In Florida, a state constitutional amendment has virtually destroyed peer review protection.”
Courts tend to technically interpret state peer review statutes. This underscores the importance of EDs staying current with case law, and adjusting policies accordingly. Callahan warns, “If you don’t come into full compliance and it’s a bad case, the court will find a way to argue that the protections don’t apply.”
- Train staff how to express concerns so they fall under peer review protection.
If someone in the ED makes an offhanded negative remark about a colleague, it could lead to serious legal repercussions. “One thing you don’t ever want to do is say something bad about a fellow practitioner in front of a patient or family,” Sheff warns. “That is a setup for triggering a lawsuit.”
If someone files a lawsuit, the incriminating comment won’t be protected from discovery. This means a plaintiff attorney can use it as evidence that the hospital knew about an EP’s performance problem and did nothing about it.
However, if the concern is addressed in a formal incident report, it’s likely to be protected. “Those can be designed to be part of the peer review process, and can be handled in a confidential way by risk management,” Sheff offers.
EDs face somewhat greater challenges with peer review protections than other areas in the hospital, in Sheff’s view. This is because a relatively small team works closely with one another, with information often exchanged informally. “Those kinds of open, collegial relationships can create a problem for protecting peer review information,” Sheff explains.
- Ensure the medical staff’s peer review policy clearly defines what the organization considers to be peer review.
“Then you can very clearly point to the language, and say, ‘That’s what we call peer review,’” Sheff says.
When a set of activities is defined as peer review, documents that are generated and conversations that happen as part of those activities are covered by whatever protection the state provides. “But if it happens outside of those activities, there is no protection,” Sheff adds.
- Understand what’s protected if ED groups conduct internal peer review.
More ED groups are conducting their own peer review instead of relying solely on the hospital to perform the task. One reason is the increasing emphasis on quality metrics and outcome measurements. “The problem is, those peer review efforts might not be protected under state law,” Callahan warns.
Some large ED groups cover multiple states. Not all have peer review protections that apply to physician groups. This means that if a bad outcome occurs and a patient sues, the hospital’s peer review materials would be protected, but the ED group’s would be discoverable. “Anything the ED group is creating could be subject to discovery in a medical malpractice case, either against the EP, the hospital, or the group,” Callahan says.
However, if the ED group’s peer review was conducted under the auspices of a Patient Safety Organization (PSO), it might be protected. Not all ED groups take advantage of this. “We are not finding ED groups participating in PSOs, even though it’s available to them,” Callahan notes.
Under the federal Patient Safety and Quality Improvement Act of 2005, all licensed providers, including EPs and groups, can claim important privilege protections from discovery in all state and federal proceedings relating to patient safety activities, such as peer review data, information, analyses, and reports, if they contract with a federally certified PSO.
Relying solely on the hospital for peer review is problematic for ED groups for other reasons. “If I’m a hospital interviewing different ED groups, I’m going to ask questions like, ‘What do you do internally to track adverse outcomes?’” Callahan says.
Hospitals want to know that ED groups have created good internal processes to identify risk-prone EPs. “Hospitals will say, ‘To the extent you have a problem with an EP who is working at our facility, we need to know about it. We may not want the EP here if he or she is exposing us to liability,’” Callahan says.
If a plaintiff attorney discovers an EP experienced problems at another facility, but the ED group took no action, this could open the door for the ED group to be named as a defendant.
During depositions, leadership of the ED group will face such questions as: “You didn’t do your own review of the EP? He had a problem at another hospital and you had no idea? Are you telling me you don’t do anything to track your own physicians’ performance?”
“The plaintiff attorney could allege that had the ED group taken action, the patient would not have been injured,” Callahan says.
- Michael R. Callahan, JD, Partner, Katten Muchin Rosenman, Chicago. Phone: (312) 902-5634. Fax: (312) 902-1061. Email: email@example.com.
- Rick Sheff, MD, Chief Medical Officer, The Greeley Company, Danvers, MA. Phone: (888) 749-3054. Fax: (978) 531-5601. Email: firstname.lastname@example.org.
- Laura Walker, MD, Department of Emergency Medicine, Mayo Clinic, Rochester, MN. Phone: (507) 255-5607. Email: email@example.com.