EXECUTIVE SUMMARY

ASCs must follow state laws about peer review privilege to ensure they enjoy legally protected confidentiality when confronted with lawsuits.

  • There is no federal peer review privilege; each state’s rules are different.
  • Not every quality review is protected under peer review privilege.
  • If the state specifies that the peer review committee should include certain members and handle specific responsibilities, then the ASC should put these requirements in its bylaws.

Suppose a former patient sues an ASC and surgeon. The patient’s attorney asks to see every peer review note related to the surgeon. Does the ASC have to turn over the peer review documentation?

Surgery center board members might think this type of information is protected automatically from legal discovery. However, if these board members rely on this assumption, they are wrong, according to Thomas J. Stallings, JD, partner at McGuireWoods in Richmond, VA. There is no federal peer review privilege, and each state sets different criteria for peer review privilege, he says. Thus, ASCs must follow their states’ laws to ensure they enjoy this legally protected confidentiality when confronted with lawsuits.

“The general rule is that everything is fair game in a lawsuit,” Stallings says. “You can ask the other side to give up their documents, and a privilege is an exception to that rule.”

Peer review privilege works like attorney-client privilege: ASC peer review committees’ minutes and other materials are protected from discovery in a lawsuit. But this is not an automatic privilege. There are prerequisites determined by the state. “In order to qualify for that privilege, you have to be structured in a particular way, and that depends on the state’s law,” Stallings explains.

For example, a state’s law might specify what defines a peer review committee. The law might dictate that the committee has to be responsible for one of several activities, which could include working to improve the quality of care or evaluating professional conduct, Stallings notes.

Peer review committee members can discuss and investigate problems and maintain privilege by following their states’ requirements. However, these members cannot move the umbrella of privilege over the heads of other people or groups. For instance, risk managers typically do not enjoy legal privilege, Stallings says. If an ASC has a problem and asks a risk manager to investigate and address it, the risk manager’s work and documentation likely are not covered by privilege.

“The mistake I see most often is people assume that every quality review is protected. It might be, but it’s not always protected,” Stallings cautions. “Knowing the rules of the road is a good management strategy so you understand what would be protected and what is not protected.”

There are other steps ASC leaders can take to maintain their peer review privilege:

Be proactive. “Don’t wait until there’s a fight over a certain set of documents to see if they’re privileged or not. It might be too late,” Stallings warns.

Instead, in the ASC’s medical staff bylaws, include the same requirements for peer review privilege that are listed in state law. If the state specifies that the peer review committee must have a certain member composition and responsibilities, then the ASC should spell out these requirements in the bylaws, Stallings recommends.

Too often, ASCs use generic, off-the-shelf medical staff bylaws or they adopt bylaws from a local hospital. This is a mistake because ASC staff might not follow these generic bylaws. If the bylaws are not followed, a plaintiff attorney could argue that the ASC did not take the actions required under its own bylaws. The proactive ASC can argue before a judge that it has created bylaws that outline the state’s requirements and that the facility followed these bylaws.

“If it goes before a judge, and the judge says, ‘The law says you have to have a committee with this kind of membership and function,’ then the ASC can say, ‘It’s right here in our medical staff bylaws. We qualify for privilege, so we don’t have to turn over the records,’” Stallings says.

Surgery centers also should be proactive with addressing behaviors and practices that could result in lawsuits, Stallings suggests. If a physician is not following technique for a procedure, then this should be addressed by directing the doctor to learn from peers or take a course on the technique.

“Prevent something more significant from happening,” Stallings says. “Don’t let behavior fester or snowball. Address it early on. It takes a certain amount of will and direction from the governing body.”

It also might require a surgery center to educate staff and physicians about medical staff bylaws and how to ensure they follow the rules. “It benefits the center and physicians to be proactive,” Stallings says. “Whether the physician has behavioral or clinical issues, it’s better to have that addressed and corrected before it spirals into something really bad.”

Review and revise bylaws periodically. “ASCs need to periodically review and revise, as appropriate, their medical staff bylaws,” Stallings recommends. “The medical staff bylaws document is important and very dry. It might sit on a shelf and collect dust.”

Surgery centers that have been using the local hospital’s medical staff bylaws should come up with their own version.

“More often than not, I see surgery centers that copy the local hospital’s medical staff bylaws,” Stallings says. “That’s a bad idea because hospitals are structured differently and have much larger medical staffs and more committees and layers.”

A hospital with 200 doctors on the medical staff might need more committees. But a surgery center with 20 doctors does not need the same hierarchy, he notes. Plus, it is unlikely the surgery center is following the bylaws that were based on a hospital, which can lead to trouble.

“If there’s a disconnect between your bylaws and your practice, then you either change the bylaws to fit your actual practice, or you modify your practice to fit the bylaws,” Stallings says. “You don’t want a disconnect to exist between bylaws and real-life practice.”