Secret recording raises question of peer review shield

As useful as peer review protection is in keeping potentially harmful information out of malpractice litigation, risk managers should keep in mind the limits and not become overly dependent on peer review privilege, attorneys say.

It is easy to rely on peer review protection too much because it is indeed a strong shield, says James A. Hoover, JD, partner in the Birmingham, AL, office of the law firm Burr & Forman.

"I have represented a ton of cases in which hospitals sought to quash the request for records, saying they were protected by peer review, and I've found that in both state and federal courts, the judges are very reluctant to release that information and say it's not protected," Hoover says. "There's no doubt that peer review protection is valuable and can be relied on in a lot of situations."

What confuses some providers is whether peer review protects the underlying facts of the case. It does not, Hoover explains. "It protects the correspondence, the opinions, the exchange of information between people, but not the underlying facts of the case," he says. "State laws will phrase it differently, but in Alabama it is called the original source. The facts themselves often are discoverable."

So if, for example, a nurse overhears a physician admitting guilt and is then called to relate that experience during peer review, the nurse's statement will be protected by peer review, Hoover explains. But the plaintiff's attorney can ask the nurse what she heard, and that underlying fact is not protected. The nurse would have to provide that information, as long it was not heard in a protected situation such a credentialing committee meeting, he says.

The issue was raised by a recent Ohio case in which a patient's family secretly tape-recorded a meeting in which a hospital official stated that the patient's death was the result of an error. The hospital tried to bar the plaintiffs from using the recording in their case against the hospital, and it cited peer review protection. The recorded statement was protected by peer review privilege, the hospital argued, because the error had been discussed in peer review, and the hospital official was conveying part of that review, a root cause analysis, to the family.

Ohio trial and appellate courts refused to bar the evidence. They said the hospital failed to prove the statement about a lab error was connected to peer review. The case is still in litigation.

As for the legality of secretly recording another party, state laws will vary on whether the other person must be informed that you are recording. Hoover advises healthcare providers to always assume they are being recorded and act accordingly.

Peer review protection is analogous to the attorney-client privilege, Hoover says. If you tell your attorney you ran a red light, that statement is protected and cannot be used against you in court, he says. The fact that you ran the red light, if that can be proven otherwise, is not protected just because you told your attorney.

"What trips up a lot of people is that you have to act in such a way that you intend for it to be confidential," Hoover explains. "You can waive the peer review protection if you do not act in confidence, just like if you yelled across a crowded restaurant that you ran the red light, that would not be a protected communication with my client."

Source

• James A. Hoover, JD, Partner, Burr & Forman, Birmingham, AL. Telephone: (205) 458-5111. E-mail: jhoover@burr.com.