Discussions on Patient Care Could Become Discoverable
If a group of EPs want to discuss a case as part of a peer review process, they probably assume that discussion is protected from discovery during litigation. In fact, states vary widely in this regard, with gaps in peer review protections identified in 17 states and the District of Columbia.1
“We were definitely surprised to find so much variability among the states," says Rachel A. Lindor, MD, JD, the study’s lead author and research chair in the department of emergency medicine at Mayo Clinic in Phoenix.
In those 18 jurisdictions, common exceptions included peer review without a specific number of participants, peer review that was not formally mandated by the institution, and statements made by participants outside the formal peer review process.
“We felt that it was important to get this information out there,” Lindor says. “The exceptions that we identified are really not intuitive.”
For example, there is no apparent reason why information should not be confidential if only nine people are present as opposed to 10. “But if you live in certain areas, that is the law,” Lindor notes.
If one EP’s evaluation of another EP is labeled as “peer review,” there is a common misconception that it is going to be protected from discovery. “Unfortunately, labeling an evaluation of a healthcare provider as peer review does not necessarily provide peer review protection,” says Patricia S. Hofstra, JD, a partner in the Chicago office of Duane Morris. “Peer review is protected from discovery when the peer review is conducted in strict compliance with medical staff bylaws and state and federal legal and regulatory requirements.”
If a court determines peer review protections do not apply, the material can be used as evidence against a defendant EP. “That is not always a bad outcome,” Hofstra says.
Evidence indicating the EP conducted peer review diligently and in good faith could help the defense. Considering the possibility of discoverability, EPs should avoid inaccurate, sarcastic, or unnecessary comments during peer review.
“A worse outcome is that the plaintiff is able to show that the ED providers knew that an EP defendant presented a danger to patients or staff, but did nothing to protect patients or staff from that individual,” Hofstra says.
Some states do not extend protection to peer reviews conducted by an ED group practice. A Pennsylvania court held that an emergency medicine provider group did not qualify for peer review protection under the Pennsylvania Peer Review Protection Act.2
In that case, review should be conducted by the hospital’s medical staff (in accordance with the hospital’s medical staff bylaws) to take advantage of the peer review discovery protections.
The ruling “clearly creates some significant concerns for ED providers and the ED medical groups who, in Pennsylvania at least, are completely unprotected by any peer review privilege. That’s a big concern,” says Mark Kadzielski, JD, a partner at Baker Hostetler in Los Angeles.
The ruling raises doubts about exactly what can be protected from discovery. The Pennsylvania Supreme Court has used the case in other decisions.3 Those subsequent cases have not involved ED providers.
“But the fact is that the ruling has been upheld repeatedly by the supreme court, which has major ramifications for other states,” Kadzielski says.
Pennsylvania ED providers now need to ensure peer review is conducted by medical staff committees, not the ED medical group. It is possible other states may take the same position.
“Individual ED physicians need to be very conscious of the fact that if peer review isn’t conducted by a hospital committee, they’re at risk of having information in a performance file, or whatever the ED group calls it, subjected to discovery. It can be used against the ED medical group as well as the individual EP in any malpractice lawsuit,” Kadzielski warns.
If EPs meet to examine cases where there was an unexpected bad outcome, regardless of whether their discussion is discoverable, depends on a few factors. If the EPs are members of the medical group who are discussing the matter for the purpose of performance evaluation, hiring, firing, and promotions, “that’s probably not going to be protected in most states,” Kadzielski says.
However, if the EPs are members of the medical staff committee in the department of medicine, and they are focused on the quality of ED care within the hospital, and minutes are created through the hospital peer review committee that are approved by the medical executive committee, “then it’s probably protected,” Kadzielski notes.
The unintended consequence is EPs will think twice about engaging in candid, albeit confidential, discussions. “The other twist here is that the credentialling process, at least in Pennsylvania, appears not to be protected at all,” Kadzielski observes.
This means if an EP is terminated from one ED group or hospital, and moves to another hospital and is sued for malpractice, the plaintiff attorney can request the credentialling files from the first group or hospital. “That creates all kinds of implications,” Kadzielski says.
Joshua E. Gajer, JD, says that as a general rule, peer review protections are only going to apply if the state where the provider practices has a peer review statute on the books, the information at issue was exchanged in formal compliance with the technical requirements of the applicable statute, and the purpose of the discussion was to improve future outcomes (not to manage risk related to a prior bad outcome).
“Although the public policy rationale and general framework for peer review protection is largely similar among states that employ it, the technical details of how the protection operates can vary state to state,” says Gajer, counsel at Philadelphia-based White and Williams LLP.
Court rulings have emphasized the importance of maintaining strict technical adherence to the requirements of the applicable statute for protections to attach.4 “This change is consistent with an overall trend throughout the country, which disfavors peer review protections,” Gajer says.5,6
Gajer says peer review protections must strike the right balance between the plaintiff’s right to discover information and the need for providers to openly discuss care without fearing legal repercussions. “What good are quality improvement efforts if you cannot share the learnings from past mistakes with other members of the institution without risking waiver of applicable privileges?” Gajer asks.
Maintaining robust peer review protections are critical to ensuring hospital providers, including EPs, “can continue to engage in the type of unflinching self-criticism that promotes constant quality improvement in medicine for the betterment of all patients,” Gajer says.
EPs often believe any discussions about patient care with colleagues are peer review-protected. “Discussions in the hallway, the elevator, the medical staff office, or a physician lounge area are examples of discussions that are not protected,” Hofstra explains.
Also problematic: text messaging or emails for informal “curbside consults” that used to happen exclusively in person. “These messages, sent in the aftermath of an unexpected outcome, are often raw, emotional reactions made without the benefit of rigorous reflection and careful analysis,” Gajer notes.
Such communications are unlikely to be protected under the applicable peer review statute in any state. “This can be very problematic in subsequent litigation,” Gajer cautions.
ED providers may disagree on whether the standard of care was met in any given case, or whether even in a clear case of deviation from the standard of care that the deviation actually harmed the patient. “ED providers should be wary of speaking about a case or putting anything in writing outside the formal peer review setting,” Gajer offers.
Discussions often occur without the benefit of outside expert review or complete information (e.g., from pending lab results or an autopsy). “Accordingly, preliminary conclusions drawn during these meetings will not always conform to the ultimate medical reality,” Gajer says.
Any of those communications could become discoverable in a subsequent malpractice lawsuit. “The potential risks to hospitals and providers due to further erosion of peer review protections are substantial,” Gajer says. “Peer review discussions are often, by nature, wide-ranging and speculative.”
At teaching hospitals in particular, residents and fellows routinely discuss patient care with attending physicians. The purpose of these conversations is to help residents and fellows learn, with the objective of improving future care. Even so, says Gajer, “if these discussions are held in any forum outside of the formal peer review process, they will be discoverable in litigation.”
In the heat of the moment, EPs sometimes send texts to colleagues, raising the inference of substandard care. “Even truly benign messages can be misinterpreted,” Gajer says.
Gajer has seen EPs send texts stating, “I wish we would have caught it sooner” and “Oh my God, that is horrible. Do you think we killed him?” and “Do you think there is anything we should have done differently? I feel so terrible about everything.”
“ED providers may wonder aloud or in writing whether they should have made the ‘missed’ diagnosis sooner, or if they could have done anything differently to change the outcome,” Gajer says.
If disclosed in discovery, these statements can be problematic for the defense. It is difficult for defense attorneys to support the care using an outside expert if there is evidence indicating the involved EP thought there was a deviation from the standard of care.
“It can make even a medically defensible case, where everything was done appropriately, extraordinarily difficult to defend,” Gajer says.
- Lindor RA, Campbell RL, Reddy S, Hyde RJ. State variability in peer review protections heightens liability risks. Mayo Clin Proc Innov Qual Outcomes 2021;5:476-479.
- Reginelli v. Boggs, 645 Pa. 470, 181 A.3d 293 (2018).
- Leadbitter v. Keystone Anesthesia Consultants, No. 1414 WDA 2018, 2020 WL 702486, at *1 (Pa. Super. Ct., Feb. 12, 2020).
- Ungurian v. Beyzman, 232 A.3d 786 (Pa. Super. 2020).
- United States v. Aurora Health Care, Inc., 91 F. Supp. 3rd 1066 (E.D. Wis. 2015).
- Valley Health v. Eighth Jud. Dist. Ct. Nevada, 252 P.3d 676 (Nev. 2011).
Evidence indicating the emergency physician conducted peer review diligently and in good faith could help the defense. Still, considering the possibility of discoverability, providers should avoid inaccurate, sarcastic, or unnecessary comments during peer review.
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