The doctors who serve on peer review committees must speak and act freely without fear of retaliation, therefore members often receive legal protections.
Q: My cousin had bariatric surgery that turned out disastrously. The suture line was placed too close to a cauterized area, and reoperation for the anastomotic breakdown that inevitably ensued left him with a gastric remnant that is too small for adequate nutrition. He is being maintained with a feeding tube for the foreseeable future. He made a complaint to the Department of Health (DoH), which after investigating, found serious deficiencies in the procedure and follow-up. He could not get the result of the Peer Review Committee (PRC) that investigated the case and terminated the doctor’s privileges. He plans to sue and feels that the PRC report would greatly strengthen his case. Since both the DoH investigation and the PRC action relate to protecting public health, aren’t both available or both shielded?
A: The minutes and reports of a qualified peer review body are shielded from discovery on the public policy basis that we want the doctors who serve on these panels to speak and act freely and without fear of retaliation, allowing them to concentrate only on the issues of whether the care was proper and on ensuring the welfare of future patients.
By contrast, there is no such confidentiality interest among DoH investigators, who are openly employed for that task.
That having been said, qualifying for peer review confidentiality carries obligations.
Like other privileges, such as between a doctor and a patient, peer review confidentiality was created to favor a socially valuable aim. When the Health Care Quality Improvement Act (HCQIA) codified peer review confidentiality, it specifically noted that confidentiality is a predicate for doctors being willing to monitor and police medical care for the safety of patients.
However, we keep the criteria for privileges narrow because they are obstructions to fact-finding, as your cousin is experiencing in planning a lawsuit where he will bear the burden of proof.
To satisfy HCQIA, a committee must formally organize for the peer review process and only act after a reasonable effort to obtain facts and in the reasonable belief that they are in furtherance of quality health care. Doctors being reviewed must also receive adequate notice, due process, and the chance for a hearing. A court evaluating an assertion of privilege against a discovery demand would look at both governing documents, such as medical staff bylaws, and the actual facts of how the information-gathering and review were conducted.
However, even if a PRC qualifies for immunity from disclosure, only the documents it created by request will be privileged. Medical records, patient complaints, employment records, and business records that it may have used will all be discoverable.
Although no member of a qualified PRC can be compelled to testify, it is not the PRC’s responsibility to assert this personal privilege. Therefore, an individual committee member may choose to testify about what they themselves (not their colleagues) said and did.
A statement made by someone who is a party to an action or proceeding whose subject matter is discussed at the PRC meeting is also discoverable. This means that if the doctor whom your cousin plans to sue appeared at the PRC and made statements about the case, those statements can be used in the malpractice action.
Finally, although the internal process of the PRC is shielded, the review itself and the resulting privilege termination are not. These are objective points that it are permissible for a defendant doctor, who is not immune from discovery, to be questioned about at their deposition or in court.
With negative findings from the Department of Health and a privilege termination after a review that your cousin’s case provoked in hand, he already has very powerful baseline evidence that his care was substandard even though the actual comments of the Committee members are likely unavailable.
