States are continuing to weaken peer review protections across the country, with courts interpreting statutes in ways that make hospitals more vulnerable. Some legislatures are rewriting laws to give more power to plaintiffs.
The Pennsylvania Superior Court, in Leadbitter v. Keystone Anesthesia Consultants, Ltd., recently ordered a healthcare defendant to provide the complete, unredacted credentialing file of a hospital’s orthopedic surgeon.
This was a change from how Pennsylvania courts previously addressed such discovery in medical malpractice cases, with hospitals assured that evaluations in credentialing files were protected from discovery as privileged materials.
The court ruled the evaluations are considered protected “peer review” documents under Pennsylvania’s peer review statute, but that protection was voided by the fact they were reviewed by a peer review “organization” rather than a peer review “committee.”
Pennsylvania law defines a “review committee” as “any committee engaging in peer review” and a “review organization” as “any hospital board, committee, or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.”
The court explained, “Since St. Clair Hospital’s credentialing committee is a committee that reviewed the professional qualifications and activities of Dr. Petraglia following his application for hospital privileges at St. Clair Hospital, the credentialing committee is a review ‘organization.’ Therefore, the PRPA [Peer Review Protection Act] privilege does not apply to the documents that the credentialing committee reviewed.”
The court also noted that review of “a physician’s credentials for purposes of membership (or continued membership) on a hospital’s medical staff is markedly different from reviewing the ‘quality and efficiency of service ordered or performed’ by a physician when treating patients.”
There has been activity in the courts and legislatures in the last few years that have contributed to a gradual weakening of peer review protections nationwide, says Sandra M. DiVarco, JD, partner in the Chicago office of McDermott Will & Emery.
In many ways, these changes are not necessarily new, she says. Many states have experienced a shift in protections over time as court cases interpreted the statutes and regulations underlying the peer review privilege or additional legislation provided carve-outs and exceptions to the privilege, DiVarco explains.
“We’re seeing a spectrum, from limiting the types of documents and information that are subject to the privilege and thereby exempt from discovery requests in litigation, all the way to the extreme in Florida. [There], patients were determined to have a right to all records regarding patient care incidents,” she says. “The common feature is the eroding of the privilege and painting providers into a corner as they try to undertake review and promote quality assurance and performance improvement for clinical care.”
The impact on hospitals could be significant, DiVarco says. “The absence of a meaningful peer review privilege reduces greatly the candor with which medical professionals are able to review performance and improve patient safety and the quality of care,” she says. “Hospitals, and more importantly patient care, are disadvantaged if this important function is rendered ineffective.”
Hospital peer review leaders should consider ways they can better protect themselves from discovery of privileged material, DiVarco recommends. In states where the peer review privilege has been significantly diminished, providers could consider participating in or forming patient safety organizations (PSOs) to avail themselves of the protections available under the Patient Safety and Quality Improvement Act, she suggests.
“PSOs present their own level of regulatory complexity, but they may provide an alternative for certain aspects of peer review the hospital desires to protect from discovery,” she adds.
- Sandra M. DiVarco, JD, Partner, McDermott Will & Emery, Chicago. Phone: (312) 984-2006. Email: email@example.com.