Informal peer review records shielded from medical liability plaintiffs

Idaho Supreme Court justices found that letters meant to spark a patient care review were protected from discovery.

By Amy Lynn Sorrel — Posted Aug. 31, 2011

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An Idaho Supreme Court ruling affirmed that peer review-related records deserve broad protections from discovery in medical liability claims.

That privilege applies not only to documents created within the formal peer review process, but also those generated informally for the purpose of sparking such a review and improving patient care, the high court said in a July 11 opinion in Nightengale v. Timmel.

The decision is significant in that it confirms the peer review statute's reach beyond the four walls of a hospital, said Ron Hodge, associate director and legal counsel of the Idaho Medical Assn. The association was not involved in the case.

The law was intended to encourage physicians to speak freely about shortfalls in patient care to improve quality and therefore "is extremely broad in what it sweeps into the material in the peer review process," Hodge said. "Without that immunity and confidentiality, physicians would be reticent to participate in the process and share critical information for fear of getting swept [into litigation]."

At issue were two letters that orthopedic surgeon Dominic Gross, MD, wrote in October 2007 asking two hospitals to review the prior care that Janet Bell Nightengale had received at the Boise, Idaho, facilities. Dr. Gross had amputated Nightengale's left arm after a blood clot cut off her circulation.

Nightengale sought to use the letters as part of a medical liability claim she filed against one of the emergency physicians who first treated her, for allegedly failing to diagnose the clot. The doctor, Kevin M. Timmel, MD, denied any wrongdoing.

Dr. Gross was not named in the lawsuit, but his letters were inadvertently turned over to the plaintiffs along with her medical records during the discovery phase of the trial.

Letters not allowed as evidence

A judge barred Nightengale from using the letters as evidence, and a jury found in favor of Dr. Timmel. Nightengale appealed, arguing among other claims that the letters were not the product of an in-hospital medical staff committee and therefore not confidential.

But justices said the statute makes all peer review records privileged and requires that such documents simply be "related to" to the process.

"Dr. Gross' clear intent in writing the letters was to point out potential flaws he suspected might have occurred in Nightengale's care, such as her being overlooked because she was homeless ... and to request review and investigation of those flaws in the hospitals' respective care," Justice Warren Jones wrote. "Further, it is in the public interest to protect and thereby encourage the writing of such letters that initiate the important process of peer review in order to provide better care to Idaho's citizens."

An attorney for Nightengale did not return calls for comment.

Patients still have access to their medical records to establish cases and seek a remedy in court, said Portia L. Rauer, whose firm, Powers Tolman PLLC, represented Dr. Timmel.

"While unfortunate events happen, not every unfortunate event is a medical malpractice case, but we can learn from them," she said.

Hodge said the decision applies only to medical liability cases. A separate case pending before the state Supreme Court will address whether physician plaintiffs can access peer review documents in employment disputes, for example, over the revocation or suspension of their privileges.

Oral arguments in that case, Verska v. Saint Alphonsus Regional Medical Center, are expected to begin in late September. The IMA filed a friend-of-the-court brief in the case arguing for peer review confidentiality.

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