images/section_heds/.gif not readable.
This article was written by Laurie K. Miller and published by DRI.
Protecting and Preserving the Peer Review Privilege - Solutions for Corporate Counsel Representing Hospitals, Health Care Corporations, and Health Care Providers
Health care providers are generally familiar with the doctor-patient privilege, which protects information exchanged between physician and patient for the purposes of rendering or receiving health care services. The peer review privilege is similar, except that it protects communications that occur in connection with the peer review process where health care providers review and critique both specific and general elements of health care with the overall goal of health care improvement. This chapter will explore what peer review is, why it needs to be protected, the basic elements of peer review protection statutes, ways the protections may be waived, peer review protections in the federal courts, and some limits on peer review protections. Because peer review protections are so state specific, this chapter will also provide a quick reference guide to peer review statutes for each state. Finally, this chapter will provide some practice pointers for counsel dealing with peer review issues.
II.What is Peer Review?
Peer review (sometimes called medical review) is the process by which doctors, hospitals, and other health care providers review the performance of other doctors and health care providers. See 41 C.J.S. Hospitals 15 (2008). Peer review has many applications. It is used to review the nature, quality, and necessity of care provided to a specific patient. See id. Peer review is used to review the qualifications and credentials of health care providers to determine whether they may practice in a particular hospital and, if so, under what parameters. Peer review, in this regard, is also a critical part of the determination that a physician or other health care provider should not be allowed to practice, in whole or in part.
The earliest known peer review can be traced to the American College of Surgeons. In 1918, the College sought to standardize hospitals, organize medical staffs, and set minimum standards. See Maureen Glabman, The Future for Peer Review, Trustee Magazine, available here. In the first half of the twentieth century, the medical profession developed peer review as a way to review the quality of the care rendered by physicians and surgeons. In 1952, the Joint Commission on Accreditation of Hospitals (now the Joint Commission on Accreditation of Healthcare Organizations, or JCAHO), began to require hospitals to perform peer review to qualify for accreditation. See Susan O. Scheutzow, State Medical Peer Review: High Cost But No Benefit - Is it Time for a Change?, 25 AM. J.L. & MED. 7, 12-13 (1999). Over the second half of the twentieth century, medical peer review developed into the primary method of evaluating the quality of physician services at hospitals. See id.
Today, peer review is performed in a variety of settings, such as part of the quality assurance program of a hospital or other health care institution, or through a medical society or a third-party payer of health care expenses. See id. Some of these review committees have been established in response to a state mandate or a federal statute which requires such peer review committees as a prerequisite to receiving federal funding for programs such as Medicare and Medicaid. See 42 U.S.C. 1395-96. See also, Dorothy Duffy & Martha C. Romney, Medicine and Law: Recent Developments in Peer Review and Informed Consent, 26 TORT & INS. L.J. 331, 334 (1991). In addition, the JCAHO now requires hospitals to establish a system for peer review of hospital operations. See Duffy & Romney, supra at 334.
III.The Need for Protecting the Peer Review Process
While the concept of peer review is noble in theory, it poses a host of problems for those asked to participate. A physician asked to participate in the critique of a fellow physician may be disinclined to do so if there will be publication or disclosure of his or her comments, notes, opinions, or conclusions. A physician may be concerned about potential defamation or antitrust lawsuits arising from participation in a review resulting in the termination, suspension, or denial of another physician's staff privileges. A physician may also be concerned about loss of patient referrals if he/she participates in a peer review of a colleague. Further, if the information generated during the peer review process can be produced during discovery or introduced at trial in a civil action, especially a medical malpractice lawsuit, the effectiveness of peer review could be hampered because physicians will be reluctant to provide a complete, honest evaluation and analysis during the peer review process.
The purpose of making peer review privileged or confidential is to promote candor and confidentiality in the peer review process, and to foster aggressive critiquing of medical care and qualifications by a doctor's peers. See Pardo v. Gen. Hosp. Corp., 841 N.E.2d 692 (Mass. 2006). See also generally Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249-50 (D.D.C. 1970); Claypool v. Mladineo, 724 So. 2d 373, 388 (Miss. 1998); Cruger v. Love, 599 So. 2d 111, 114-15 (Fla. 1992); Trinity Med. Ctr., Inc. v. Holum, 544 N.W.2d 148, 155 (N.D. 1996); Young v. Saldanha, 431 S.E.2d 669 (W. Va. 1993); Moretti v. Lowe, 592 A.2d 855, 857 (R.I. 1991); HCA Health Servs. of Virginia, Inc. v. Levin, 530 S.E.2d 417, 420 (Va. 2000); Glover v. Griffin Health Servs., No. X06CV055001692S, 2007 WL 3173658 at *4 (Conn. Super. Oct. 11, 2007) (finding that a "Grand Rounds meeting serves as an important educational tool not only to provide an understanding and a critique of the care provided by a particular doctor, but also to provide a teaching mechanism to enhance the quality of future medical care, which are all goals consistent with the public policies implicated by the peer review privilege.")
To fulfill these purposes and concerns, all fifty states, the District of Columbia and the federal government have now passed statutes designed to protect communications and documents that are part of the peer review process and/or provide immunity for those who participate in the peer review process. See Virmani v. Novant Health, Inc., 259 F.3d 284, 290 (4th Cir. 2001).
Statutes from several states contain legislative findings about the purpose of peer review protection which consistently cite the concept of balance between patient protection and doctor privacy. See, e.g., GA. CODE ANN. 31-7-130; FLA. STAT. 395.001. One state concluded that "it is necessary to balance carefully the rights of the consuming public who benefit by peer review with the rights of those who are occasionally hurt by peer review." WASH. REV. CODE 7.71.010. Statutes must also balance the protection of past and future patients with the potential harm to a medical professional wrongfully punished by a peer review committee. California's statute notes, as part of its lengthy legislative findings, that "[i]t is the intent of the Legislature that peer review of professional health care services be done efficiently, on an ongoing basis, and with an emphasis on early detection of potential quality problems and resolutions through informal educational interventions. See CAL. BUS. & PROF. CODE 809.
Ultimately, while all of the states enacting peer review protection statutes may have similar ideals, it takes careful analysis of each statute to determine which privileges apply and to what extent.
IV.Basic Elements of the Peer Review Protection
While peer review statutes are highly state specific, and vary widely in terms of the protections afforded for participants in the process and for confidentiality of peer review materials, almost all peer review statutes share some commonalities. Generally speaking, peer review statutes tend to include these elements:
Almost every state puts the burden of proving entitlement to peer review protection on the party seeking it. See, e.g., Sw. Cmty. Health Servs. v. Smith, 755 P.2d 40, 44 (N.M. 1988) (stating that when a party seeks to invoke the protection of the peer review statute it must prove that the "information was generated exclusively for peer review and for no other purpose, and that opinions were formed exclusively as a result of peer review deliberations.") See also State ex rel. Shroades v. Henry, 421 S.E.2d 264 (W. Va. 1992); Levin v. WJLA-TV Corp., 51 Va. Cir. 57, 59, 1999 WL 1499120 (Va. Cir. Ct. 1999); Manley v. Heather Hill, Inc., No. 2007-G-2765, 2007 WL 4485366 (Ohio Dec. 21, 2007). In terms of proving entitlement to statutory protection, one commentator suggests:
William D. Bremer, Scope and Extent of Protection from Disclosure of Medical Peer Review Proceedings Relating to Claim in Medical Malpractice Action, Annotation, 69 A.L.R. 5th 559 (1999). Moreover, in most states, participants of peer review organizations are the ones entitled to assert entitlement to peer review protection. See, e.g., White v. Cassady, 29 Va. Cir. 45, 49-50, 1992 WL 884790 at *4 (Va. Cir. Ct. 1992).
A. The Peer Review Committee
As indicated above, most states provide an explicit definition of peer review or medical review committee. See, e.g., CONN. GEN. STAT. 19a-17b(a)(4) (stating that a medical review committee "shall include any committee of a state or local professional society or a committee of any health care institution . . . and any utilization review committee . . . and a professional standards review organization or a state-wide professional standards review council . . . [i]t shall also mean any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto."); W. VA. CODE 30-3C-1 (defining "review organization" as including "any hospital board committee, or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto..."). Not all states require peer review committees to contain only doctors. In Santa Rosa Mem. Hosp. v. Superior Court, a California court of appeals held that, even though the majority of the members of the committee at issue were not physicians, the committee was still a peer review committee entitled to the protections of the applicable peer review statutes because the functions of the committee fell within the parameters of the statute. 220 Cal. Rptr. 236 (Ct. App. 1985).
Some states look beyond the definition of peer review committee provided in the applicable statute to determine if a particular committee is covered by the relevant statute. For example, in West Virginia, courts may examine a hospital's bylaws, rules, and regulations to determine whether the committee in question is a review organization, State ex rel. Shroades v. Henry, 421 S.E.2d 264 (W. Va. 1992), and to confirm that the committee meets the requirements in the statute. State ex rel. Charles Town Gen. Hosp. v. Sanders, 556 S.E.2d 85 (W. Va. 2001). Other courts look for interpretive guidance in the statute's legislative history, circumstances surrounding enactment of the statute or the legislative policy the statute was designed to implement where the definition of peer review committee is not plain on its face. See Glover v. Griffin Health Servs., No. X06CV055001692S, 2007 WL 3173658 at *4 (Conn. Super. Oct. 11, 2007).
1. Committees Generally Covered
A common example of a committee that is often argued to be outside the definition of "peer review committee" is a credentialing committee. In State ex rel. Charles Town Gen. Hosp. v. Sanders, 556 S.E.2d 85 (W. Va. 2001), the Supreme Court of Appeals of West Virginia took a hard look at West Virginia Code 30-3C-1, which defined "review organization" as including "any hospital board committee, or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto..." W. VA. CODE 30-3C-1. The issue in the case was whether credentialing files, and more specifically applications for hospital privileges, were protected by the peer review statute. The Court held that a hospital committee responsible for considering applications for staff admission and for issuing staff privileges or credentials is a "review organization" within the definition of West Virginia Code 30-3C-1 and, as such, the peer review privilege properly applied to credentialing files.
In other states, a credentialing committee may be considered a peer review committee, but not all of its functions and documents may be protected from discovery. For example, in State ex rel. Faith Hosp. v. Enright, 706 S.W.2d 852, 855 (Mo. 1986) the Missouri Supreme Court ruled that only those findings of a credentialing committee that were directly related to health care provided to patients would be exempt from discovery. Along these lines, the court in Babcock v. Bridgeport Hosp., noted that "[s]imply because a hospital committee is a medical review committee does not suggest that all of its activities are considered peer review proceedings." 742 A.2d 322 (Conn. 1999).
Other than credentialing, there are several other committees that generally receive peer review protection. Quality evaluation or quality assurance committees (or committees formed for the purpose of improving quality of health care) have generally received peer review protection. See, e.g., D'Angelis v. Buffalo Gen. Hosp., 770 N.Y.S.2d 553 (N.Y. App. Div. 2003); Claypool v. Mladineo, 724 So. 2d 373 (Miss. 1998); Swatch v. Treat, 671 N.E.2d 1004 (Mass. Ct. App. 1996); State ex rel. Shroades v. Henry, 421 S.E.2d 264 (W. Va. 1992); Poulnott v. Surgical Assoc. of Warner Robins, P.C., 345 S.E.2d 639 (Ga. Ct. App. 1986). The JCAHO was held to be a "peer review committee" because it performed functions similar to a peer review committee and provided information concerning how hospitals could improve overall health care services. See Hofflander v. St. Catherine's Hosp., Inc., 664 N.W.2d 545 (Wis. 2003); Niven v. Siqueira, 487 N.E.2d 937, 942 (Ill. 1985). Infection control committees have also been held to be peer review committees. See, e.g., Santa Rosa Mem. Hosp. v. Superior Court, 220 Cal. Rptr. 236 (Cal. Ct. App. 1985); Sakosko v. Mem. Hosp., 522 N.E.2d 273 (Ill. App. Ct. 1988); Ekstrom v. Temple, 553 N.E.2d 424 (Ill. App. Ct. 1990); Cofone v. Westerly Hosp., 504 A.2d 998 (R.I. 1986).
2. Committees Not Covered
There are also occasions where courts have found a particular committee did not qualify for protection under the relevant state statute. A Board of Trustees was held not to be a peer review committee under the relevant statute. See Shelton v. Morehead Mem. Hosp., 347 S.E.2d 824 (N.C. 1986). One person is not a committee for purposes of peer review protection in Illinois. See Roach v. Springfield Clinic, 623 N.E.2d 246 (Ill. 1993). A private contractor who was retained to provide cost containment services to a state consolidated health care plan did not qualify as peer review committee member, and therefore could not raise the peer review privilege. See State ex rel. Tennill v. Roper, 965 S.W.2d 945, 947 (Mo. Ct. App. 1998). Finally, in some cases, courts have not been able to establish whether the committee met the applicable definition of peer review committee. See, e.g., Coburn v. Seda, 677 P.2d 173 (Wash. 1984) (finding the record insufficient to determine if "charting committee" or "mortality review committee" were peer review committees under applicable statute); State ex rel. Shroads v. Henry, 421 S.E.2d 264 (W. Va. 1992) (finding the record insufficient to determine if hospital's "pharmacy and therapeutics committee" was a peer review committee under the applicable statute.)
The cases discussing which committees are protected (or not) under a peer review statute demonstrate the importance of examining the particular requirements of the state statute at issue. Merely labeling a committee as performing "peer review" will not be sufficient and it is necessary to tie the function of the committee to the statutory requirements. In this regard, careful attention to the bylaws and policies establishing committees to ensure compliance with the statutory requirements goes a long way toward ensuring protection.
B. Immunity for Peer Review Participants
The second element found in many peer review statutes is participant immunity, described by one state as an "incentive for the medical profession to undertake professional review" in good faith. TENN. CODE ANN. 63-6-219. In some states, immunity only runs to the actual members of the peer review committee. See, e.g., ARK. CODE. ANN. 20-9-502; N.C. GEN. STAT. 131E-95. In other states, immunity may extend to other participants in the peer review process who are not members of the review committee or the hospital's governing body. See N. Colo. Med. Ctr., Inc. v. Nicholas, 27 P.3d 828 (Colo. 2001) (finding individual witnesses and participants in the professional review process who are not members of the professional review committee or affiliated with the medical facility's governing board are entitled to immunity from suit as long as they have acted in good faith within the scope of the professional review process). See also COLO. REV. STAT. 12-36.5-105; accord, ALASKA STAT. 18.23.010; 18.23.020; MINN. STAT. 145.63; MD. CODE ANN., HEALTH OCC. 14-501(b)(5). In some states, immunity may run only to individuals, not hospitals or other entities. See Axline v. St. John's Hosp. & Health Ctr., 74 Cal. Rptr.2d 385 (Ct. App. 2d Dist. 1998); Smith v. Our Lady of the Lake Hosp., Inc., 639 So. 2d 730 (La. 1994). But see Hassan v. Mercy Am. River Hosp., 74 P.3d 726 (Cal. 2003). Further, in some states, protection does not extend to medical review panels or medical insurers. See Klarfeld v. Salsbury, 355 S.E.2d 319, 324 (Va. 1987) (privilege does not extend to medical review panels because the statute does not apply to any entity that is not a committee); Howell v. McDaniel, 52 Va. Cir. 526, 528, 1994 WL 1031349 (Va. Cir. Ct. 1994) (medical insurers do not qualify for the peer review protection). In the federal arena, the Health Care Quality Improvement Act (discussed infra), expressly extends its protections to a "professional review body," which is defined as a "health care entity," which in turn is defined as including a licensed hospital. See 42 U.S.C. 11111, 11151.
Some statutes offer immunity from a full range of actions, including criminal actions and antitrust cases. See, e.g., DEL. CODE ANN. tit. 24, 1768(a) (providing immunity from any "claim, suit, liability, damages, or any other recourse, civil or criminal, arising from any act, omission, proceeding, decision, or determination undertaken or performed, or from any recommendation made, so long as the person acted in good faith...") and FLA. STAT. 395.0193(1) (providing that, in addition to receiving immunity from retaliatory tort suits, good faith participants in the state-mandated peer review process are protected from federal antitrust suits filed under the Sherman Anti-Trust Act.) One state grants a qualified immunity to peer review participants, limiting actions against them to injunctive relief and recovery of lost wages attributable to actions of the peer review body. WASH. REV. CODE 7.71.030. Some statutes simply provide for no monetary liability for peer review participants. See, e.g., S.D. CODIFIED LAWS 36-4-25. Other states prohibit liability in damages generally. See, e.g., N.J. STAT. ANN. 2A:84A-22.10; 210 ILL. COMP. STAT. 85/10.2; OR. REV. STAT. 684.185. Still other states grant immunity from all civil liability, provided that the participant acted in good faith and without malice. See, e.g., ALA. CODE 1975 34-24-58; MINN. STAT. 145.63; UTAH CODE ANN. 1953 58-13-4. Idaho's statute grants blanket immunity to peer review committee members regardless of motive or good faith. See IDAHO CODE ANN. 39-1392c.
Granting immunity to peer review participants is one means by which states encourage accurate and thoughtful peer review of health care providers. However, immunity itself may not be enough to encourage physicians to participate openly and completely in the peer review process. For instance, a physician may still be concerned that participation in the review of another physician may end up being disclosed during a subsequent medical malpractice case. In the absence of a law limiting disclosure and discovery of these materials, Rule 26 of the Federal Rules of Civil Procedure, and the similar rules in most states would make the entire peer review process discoverable, absent assertion of privilege, if relevant to the lawsuit. See FED. R. CIV. P. 26. Therefore, immunity for the participant is only one part of the peer review protection. It is also important that peer review meetings, and the documents generated as a result of the peer review process, be protected.
C. Privilege and Confidentiality: Protecting Peer Review Discussions and Documents from Discovery and Third-Parties
The final element found in most states' peer review statutes is privilege and/or confidentiality of the peer review meetings and materials. There is a fine distinction between confidentiality and privilege. Confidentiality statutes generally protect peer review materials and information from disclosure to third parties, whether or not litigation ensues. Privilege statutes generally provide that peer review materials are not discoverable between the parties in the course of litigation and cannot be used in trial. Blurring the lines between confidentiality and privilege, one author stated:
Scheutzow, supra at 19. The Supreme Court of Nebraska provided the following explanation of the importance of protecting peer review meetings and materials from disclosure:
Oviatt v. Archbishop of Bergan Mercy Hosp., 214 N.W.2d 490, 492 (Neb. 1974) (quoting Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 250 (1970)). See also Scheutzow, supra at 18-19.
Some state statutes provide that documents, reports, and other writings from the peer review process are both privileged and confidential. See, e.g., TEX. HEALTH & SAFETY CODE 161.0315; NEB. REV. STAT. 25-12,123. One state, while generally recognizing protection for peer review materials, also lists specific data that is not confidential, even if generated during the course of peer review, including, in part: medical records of the patient, incident reports, and the identity of individuals with personal knowledge of the facts and circumstances. OKL. STAT. tit. 63, 1-1709.
Some states allow peer review information to be revealed in limited circumstances. For example, some states allow the proceeding respondent to break confidentiality and release the information to the public. See, e.g., GA. CODE ANN. 31-7-131(3)(B); S.C. CODE ANN. 40-71-20. In some states peer review protections may not apply to legal actions brought by a medical review committee to restrict or revoke a physician's license. See, e.g., MISS. CODE. ANN. 41-63-9(2). In some states, peer review statutes may prohibit peer review information from being released to state disciplinary or licensing boards. See, e.g., 210 ILL. COMP. STAT. ANN. 5/8; HAW. REV. STAT. 624-25.5(d). In other states, such disclosure is permitted or required. See, e.g., IND. CODE ANN. 34-4-12.6-2(a); MICH. COMP. LAWS 333.20175(7). In West Virginia, the privilege can be waived by the physician in an action against a hospital over a credentialing decision, Young v. Saldanha, 431 S.E.2d 669 (W. Va. 1993), although the waiver does not extend beyond the action as long as the parties take sufficient steps to maintain the confidentiality of the information. See State ex rel. Brooks v. Zakaib, 588 S.E.2d 418 (W. Va. 2003).
1. Items Generally Not Discoverable
Certain information, documents and other types of evidence are generally protected by the peer review privilege and, consequently, such evidence is not discoverable. Information gathered during the peer review process, documents generated specifically for the use of the peer review committee, and deliberations leading to the ultimate decision of the peer review committee are generally protected. See, e.g., Cook v. Toledo Hosp., 862 N.E.2d 181 (Ohio Ct. App. 2006); Chicago Trust Co. v. Cook County Hosp., 698 N.E.2d 641 (Ill. App. Ct. 1998). Moreover, documents generated by a peer review committee or "at the direction of the committee for committee purposes" are generally not discoverable. See, e.g., In re Living Centers of Texas, Inc., 178 S.E.3d 253, 257 (Tex. 2005). Opinions based on information learned during peer review have also been found not to be a proper subject of discovery. See, e.g., Fox v. Kramer, 994 P.2d 343 (Cal. 2000) (excluding testimony of expert about the peer review materials he reviewed while employed by State Department of Health).
Discovery of applications for staff privileges is an issue commonly litigated. One reason applications for staff privileges are tricky is that these documents are prepared by the physician, not the peer review committee. The West Virginia Supreme Court of Appeals has noted:
State ex rel. Charles Town Gen. Hosp. v. Sanders, 556 S.E.2d 85 (W. Va. 2001). The court went on to hold:
Id. Accord Parker v. St. Clare's Hosp., 553 N.Y.S.2d 533 (N.Y. App. Div. 1990). But see Jacksonville Med. Ctr., Inc. v. Akers, 560 So.2d 1313 (Fla. Dist. Ct. App. 1990).
Guidelines of peer review committees have also been held not to be discoverable. See, e.g., Ekstrom v. Temple, 553 N.E.2d 424 (Ill. App. Ct. 1990). Telephone logs created during peer review process along with correspondence between relevant persons were also held to be protected. See Arlington Mem. Hosp. Found., Inc. v. Barton, 952 S.W.2d 927 (Tex. App. 1997).
Some states offer protection specific to participants, providing they cannot be called to testify regarding the peer review at issue. For example, West Virginia Code 30-3C-3 provides "no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such organization or as to the findings, recommendations, evaluations, opinions or other actions of such organization or any members thereof..."
2. Items Generally Discoverable
Probably not surprisingly, courts have held that documents or evidence gathered by a peer review committee after its deliberations are not protected. See William D. Bremer, Scope and Extent of Protection from Disclosure of Medical Peer Review Proceedings Relating to Claim in Medical Malpractice Action, Annotation, 69 A.L.R. 5th 559 (1999). In many states, peer review statutes do not protect from discovery any documents which are available from other sources just because they were used or reviewed in the peer review process. See, e.g., W. VA. CODE 30-3C-3 (stating "[t]he proceedings and records of a review organization shall be confidential...Provided, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during proceedings of such [a review] organization...") Accord, N.C. GEN. STAT. 131E-95(b); OHIO REV. CODE ANN. 2305.251; 63 PA. CONS. STAT. 425.4. See also, Tucson Med. Ctr. v. Misevch, 545 P.2d 958 (Ariz. 1976). Some courts will require the party seeking the documents to get them from the original sources, rather than from the health care entity. See, e.g., Ex Parte Qureshi, 768 So. 2d 374 (Ala. 2000); Humana Hosp. Desert Valley v. Superior Court, 742 P.2d 1382 (Ariz. Ct. App. 1987).
Documents prepared in the ordinary course of business may also be discoverable despite the fact they may be possessed by a peer review committee. See, e.g., VA. CODE ANN. 8.01-581.17 (2003) (stating "[n]othing in this section shall be construed as providing any privilege to hospital medical records kept with respect to any patient in the ordinary course of business or operating a hospital nor to any facts or information contained in such records nor shall this section preclude or affect discovery of or production of evidence relating to hospitalization or treatment of any patient in the ordinary course of hospitalization of such patient.)
Some courts have also held that the actual result of a peer review committee's efforts, like suspension of a physician's privileges, is discoverable. See Anderson v. Breda, 700 P.2d 737 (Wash. 1985). Another court held that documents which did not "pertain to physicians," but instead pertained to nurses, were not protected by the privilege. See In re Living Centers of Texas, Inc., 175 S.W.3d 253, 261 (Tex. 2005). Finally, one court held that administrative activities, even if related to an actual peer review committee, are not privileged. See Santa Rosa Mem. Hosp. v. Superior Court, 220 Cal. Rptr. 236 (Ct. App. 1985).
For an excellent discussion of cases where courts have considered other types of documents and information in the peer review process, and have found them to be privileged in some cases, not privileged in others and where some courts could not make a determination, see William D. Bremer, Scope and Extent of Protection from Disclosure of Medical Peer Review Proceedings Relating to Claim in Medical Malpractice Action, Annotation, 69 A.L.R. 5th 559 (1999). Again, because states vary widely in terms of the types of peer review protections available, counsel for the health care entity or practitioner is strongly advised to review applicable state peer review and related statutes along with case law interpreting the same.
V.Caution: Avoiding Waiver of Peer Review Protection
While rarely successful, privilege waiver is a commonly litigated issue in the medical peer review arena. Black's Law Dictionary defines 'waiver' as "the intentional or voluntary relinquishment of a known right..." BLACK'S LAW DICTIONARY 1580 (6th ed. 1990). In many cases, whether peer review protection has been waived will be dependant on the language of the state's peer review statute(s). In an effort to protect both the subject of the review and the review participants, many states do not allow one-sided waiver. See, e.g., HCA Health Servs. of Va., Inc. v. Levin, 530 S.E.2d 417, 420 (Va. 2000) (finding that the subject of the peer review, alone, cannot waive the privilege).
In an effort to ensure that peer review is done carefully and thoughtfully, many states go to great lengths to prevent waiver of these privileges. For example, in Texas, where the state statute "expressly requires that any waiver of the privilege be done in writing by the [peer review] committee," one court refused to find a waiver of the privilege, even when the defendant was using the privilege inappropriately. See Austin v. Becton, Dickinson & Co., Inc., No. 2:06-CV-357, 2007 WL 2077156 (E.D. Tex. Jul. 18, 2007). Under Texas's offensive use doctrine, a party typically waives any asserted privilege by using the privilege "as a sword rather than a shield." See Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993). Nonetheless, in light of the extreme sanctity placed on the peer review privilege, the court found that the privilege could not have been waived, because there was no written waiver, and "there [was] no authority that such a requirement may be overridden by public disclosure." Austin, 2007 WL 2077156, *6. See also, W. VA. CODE 30-3C-3 (providing the only method by which the peer review privilege can be waived and stating that "an individual may execute a valid waiver authorizing the release of the contents of his file pertaining to his own acts or omissions, and such waiver shall remove the confidentiality and privilege of said contents otherwise provided by this section...")
Waiver by disclosure to a third-party can also be an issue. In some states, disclosure to a third-party will not result in waiver. See, e.g., Sakosko v. Mem. Hosp., 522 N.E.2d 273 (Ill. App. Ct. 1988) (privilege not waived by disclosure to risk management consultants); Piroli v. Lodico, 909 A.2d 846 (Pa. 2006) (finding that presence of a billing manager who was not a professional health care provider during peer review activity did not render peer review reports discoverable) Similarly, a hospital did not waive peer review privilege by sharing peer review report with plaintiff's surgeon where plaintiff's surgeon was the subject of the peer review investigation. See Nga Le v. Stea, 730 N.Y.S.2d 620 (N.Y. App. Div. 2001).
Peer review protection may not be waived if peer review files were reviewed in the course of an administrative proceeding. See, e.g., Arnett v. Dal Cielo, 923 P.2d 1 (Cal. 1996). Peer review protection may be waived, however, where peer review materials are used in a deposition. See, e.g., State ex rel. St. John's Reg'l Med. Ctr. v. Dally, 90 S.W.3d 209 (Mo. Ct. App. 2002). Peer review protection may also be waived if the peer review files become public record as part of another lawsuit. See State ex rel. Brooks v. Zakaib, 588 S.E.2d 418 (W. Va. 2003). But see, In re Tollison, 92 S.W.3d 632 (Tex. Ct. App. 2002).
Waiver of peer review privilege can also come in the form of voluntary testimony by a member of the peer review committee. For example, in California a statute provides that "no person in attendance at a meeting of any [hospital medical staff committee] shall be required to testify as to what transpired at that meeting." CAL. EVID. CODE 1157. The Supreme Court of California has interpreted this statute to mean that a member of such a committee may voluntarily testify if he/she chooses. See West Covina Hosp. v. Superior Court, 226 Cal. Rptr. 132 (1986). But see, GA. CODE ANN. 31-17-43 (stating that "no person in attendance at a meeting of such committee shall be permitted or required to testify in any civil action...") Similarly, New Mexico has also found that its statute does not allow waiver by voluntary testimony. See Sw. Cmty. Health Servs. v. Smith, 755 P.2d 40, 43 (N.M. 1988). Further, in Pisel v. Stamford Hosp., the Supreme Court of Connecticut allowed a witness who participated in peer review to testifying about personal knowledge of the facts and circumstances of treatment, but not about what was said or learned during, or as a result of, peer review. 430 A.2d 1 (Conn. 1980).
VI.Peer Review Protection in the Federal Arena
Peer review protection at the state level, as discussed above, is generally statutory in nature. At the federal level, to explore the full breadth of peer review protection (immunity, confidentiality, and privilege) two sources must be considered: federal statutes and federal common law. Immunity protection for those involved in a peer review process is found in the Health Care Quality Improvement Act of 1986. The act does not include, however, any confidentiality or privilege provisions. Accordingly, to determine whether such protection exists at the federal level, common law must be consulted.
A. The Health Care Quality Improvement Act
While medical peer review practices date back nearly 100 years, legal issues surrounding protections for the peer review process are a more modern phenomenon. See Amy Young, Limits to Peer Review Privilege, Virtual Mentor: AM. MED. ASS'N J. ETHICS, Vol. 5, No. 12, (Dec. 2003) available here. In 1986, Congress responded to national concerns regarding physician competence by passing the Health Care Quality Improvement Act (HCQIA). See 42 U.S.C. 11101 et seq. One function of the HCQIA was to establish the National Practitioner Data Bank, which collects information about physicians all over the country and monitors the credentialing of physicians by hospitals and states. See 42 U.S.C. 11101 et seq. See also Young, supra. Prior to the HCQIA, each individual state collected similar information and maintained it through the state's Board of Medicine. See Young, supra. This system, however, created problems because states were often not successful in disseminating the information collected. See id. The result was that physicians whose privileges or licenses were revoked in one state often went to another state to practice. See id. The National Practitioner Data Bank accomplished Congress's central purpose of strengthening the peer review process, but at the same time caused physician reluctance to serve on peer review committees. See id.
Congress addressed this issue by providing immunity to physicians making reports to the National Practitioner Data Bank as well as participating in good faith in peer review committees, under certain circumstances. See 41 C.J.S. Hospitals 16 (2008). A medical professional is granted immunity for any report made to the National Practitioner Data Bank without knowledge of the falsity of the information contained in the report. See 42 U.S.C. 11137(c). Peer review participants are immune from liability for their actions on a peer review committee so long as their actions were taken in the reasonable belief that the actions were in furtherance of quality health care. See 41 C.J.S. Hospitals 16 (citing Clark v. Columbia/HCA Info. Servs., Inc., 25 P.3d 215 (Nev. 2001)). A peer review action has been found to be taken in furtherance of quality health care when a peer review participant, considering the information available to the himor her at the time of the peer review study, would reasonably have concluded that his or her action would restrict incompetent behavior or would protect patients. See 41 C.J.S. Hospitals 16 (citing Meyer v. Sunrise Hosp., 22 P.3d 1142 (Nev. 2001)). "In reviewing the facts in the matter, the peer review committee is required by the HCQIA to consider only those facts upon which the professional review action is based." 41 C.J.S. Hospitals 16.
The HCQIA does not, however, recognize any confidentiality or privilege for peer review documents and records. In other words, physicians who serve on peer review committees may not be personally sued for their actions under federal law, but there are no federal privacy protections for their peer review records. See id. Due to the complexity of this statute, counsel are advised to carefully read the statute in its entirety. See also, Scott Smith, Annotation, Construction and application of Health Care Quality Improvement Act of 1986 (42 U.S.C.A. 11101-11152), 121 A.L.R. FED. 255 (1994).
B. Federal Common Law on Peer Review Privilege
Because there is no federal statute expressly recognizing confidentiality or privilege over peer review committee meetings and documents, the only way such protections can exist is if such privilege is recognized in federal common law. Evidentiary privileges in the federal courts are governed by Rule 501 of the Federal Rules of Evidence which provides:
FED. R. EVID. 501.
The United States Supreme Court has been hesitant to expand on any privileges, because privileges hinder the fundamental American principle that the public has a right to "every man's evidence." Trammell v. United States, 445 U.S. 40, 47 (1980). To date, there has been no federal recognition of peer review privilege. See Weiss v. County of Chester, 231 F.R.D. 202, 205 (E.D. Pa. 2005); Hadix v. Caruso, No. 4:92-CV-110, 2006 WL 2925270 at *2 (W.D. Mich. Oct. 6, 2006). Federal courts have had many opportunities to recognize a federal peer review privilege but have continually declined to do so.
Despite the immunity provision for physicians in antitrust cases in the HCQIA, courts have found the peer review privilege did not apply in antitrust cases. See Mem. Hosp. for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir. 1981) (finding the privilege should not apply because it would prevent the plaintiff from making his claim). Interestingly, however, antitrust laws have rarely been successful in overturning peer review decisions. See Charity Scott, Medical Peer Review, Antitrust and the Effect of Statutory Reform, 50 MD. L. REV. 316, 333 (1991).
The peer review privilege has also been held unavailable in federal civil rights and discrimination cases. See Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007); Virmani v. Novant Health, Inc., 259 F.3d 284, 290 (4th Cir. 2001) (finding "[t]he interest in facilitating the eradication of discrimination by providing perhaps the only evidence that can establish its occurrence [i.e. the peer review files] outweighs the interest in promoting candor in the medical peer review process.") Accord Weiss v. County of Chester, 231 F.R.D. 202, 205 (E.D. Pa. 2005).
Additionally, in the federal arena, it is always important to consider two other potential issues. First, when a case is in federal court on diversity jurisdiction, generally the applicable state law's peer review statute would apply rather than federal common law. Also, if there is a federal statute at issue, check to be sure that it does not preempt the state's law. Some courts have found that federal law can preempt state peer review statutes. See Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Kirk, 354 F. Supp.2d 196 (D. Conn. 2005).
VII.Limits on the Peer Review Privilege
There are situations in which peer review has been held either inapplicable or unavailable. Peer review protections generally cannot be used where the person or entity asserting the privilege knew information it was providing to the committee was false or otherwise lacked good faith intent to assist in the medical practitioner's evaluation. See Hassan v. Mercy Am. River Hosp., 74 P.3d 726 (Cal. 2003). See also, Bender v. Suburban Hosp., Inc., 758 A.2d. 1090 (Md. Ct. App. 2000); 41 C.J.S. Hospitals 15 (2008). But see, IDAHO CODE 39-1392c.
New York courts have held the peer review privilege is not available where suit is brought to vindicate certain rights, rather than recover damages for medical malpractice. See, e.g., Ryan v. Staten Island Univ. Hosp., No. 04 Civ. 2666, 2006 WL 1025890, at *3 (E.D.N.Y. Apr. 13, 2006) (holding peer review privilege unavailable in case alleging false advertising, deceptive business practices and common law fraud claims); _Tartaglia v. Paul Revere Life Ins. Co._, 948 F. Supp. 325, 326 (S.D.N.Y. 1996) (holding peer review privilege unavailable in action involving contract and insurance fraud claims); _Pal v. New York University_, No. 06 Civ. 5892, 2007 WL 4358463 (S.D.N.Y. Dec. 10, 2007) (holding peer review privilege unavailable in whistleblower case). But see _Daly v. Genovese_, 466 N.Y.S.2d 428 (N.Y. App. Div. 1983) (plaintiff in defamation action denied discovery regarding peer committee review meetings). Similarly, a Virginia court has held that peer review protections "do not apply in the context of a tort action unrelated to a medical malpractice action." _Levin v. WJLA-TV Corp._, 51 Va. Cir. 57, 59, 1999 WL 1499120 (Va. Cir. Ct. 1999).
VIII.Peer Review Statutes: A Look State by State
As demonstrated in the discussion above, every state's peer review statute is different and must be carefully examined. As a starting point, the list below provides quick references to each state's peer review statutes. There may be additional statutes that provide more definitional guidance or additional protections or limitations. This is not intended to be an exhaustive list, but rather a starting point for each state.
Although many of the issues related to the implementation and protection of the peer review privilege are state-specific, there are several commonalities of which counsel to the health care entity or practitioner should be aware. These practice pointers, applicable to both outside counsel and in-house counsel, include the following:
This legal update is published as a service to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation.