Connecticut court opens door for patients to see peer review records

Doctors say the state Supreme Court decision allowing Freedom of Information requests could chill peer review proceedings.

By Amy Lynn Sorrel — Posted Sept. 29, 2009

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A recent Connecticut Supreme Court decision has chipped away the state's peer review privilege, physicians say.

On Aug. 25, the high court ruled that certain peer review protections do not apply to patient requests for related information through the state's Freedom of Information Act. Justices in a split decision said peer review records were protected from disclosure only in court actions.

The case was sparked when a physician's former patient sought records from the University of Connecticut Health Center regarding the hospital's decision not to renew the doctor's clinical privileges. Because the hospital was a public institution, the high court found it was subject to the Freedom of Information Act and allowed the patient access to the credentialing records.

The ruling not only puts state hospitals at a disadvantage for peer reviews, but it also could affect private facilities if the public is permitted to scrutinize peer review information, said Layne Gakos, the Connecticut State Medical Society's legal counsel. The organization was not involved in the case.

"Any time you erode the peer review privilege, it's going to have a chilling effect on what is said at a hearing in terms of addressing patient safety issues," she said, adding that the court took an overly broad interpretation of the law. "When the statute was created, it did not differentiate between public and private institutions. It was there to protect physicians and enhance the quality of care."

The state attorney general's office, which represented the University of Connecticut, did not respond to requests for comment.

Victor R. Perpetua, an attorney for the state's Freedom of Information Commission, said any peer review records obtained through an FOI request still could not be used in a lawsuit. "That's not ostensibly what the person requesting the records wants them for."

But lone dissenting justice Flemming L. Norcott Jr. said the majority's ruling could allow potential plaintiffs to circumvent that safeguard by first filing an FOI request for peer review information to help their case, "thereby eviscerating any protection that the discovery prohibition was intended to provide."

Norcott agreed with doctors that the ruling "will have a chilling effect on future peer review proceedings, thereby defeating the very purpose of the statute."

The majority court, while acknowledging potential negative consequences of the ruling, said the Legislature would need to fix any perceived flaws in the law.

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