Challenges to peer review confidentiality rising

Physicians historically have enjoyed state protections when discussing a colleague’s behavior or analyzing an adverse event in peer review committees. At least 45 states prevent disclosure of what is said during such meetings to facilitate open communication and foster better health care.

But a recent rise in legal challenges against peer review protections is putting doctors’ confidentiality — and the process itself — at risk, legal experts and physicians say. For example:

• On May 17, a Maine judge ordered a hospital to release internal peer review files created during the evaluation of a patient’s treatment. The court said keeping the files private violates the defendant’s constitutional right to defend himself in a criminal trial. The case concerns the alleged killing of another man.
• The Supreme Court of the State of New York ruled in April that certain statements made by a vascular surgeon during a peer review hearing were subject to disclosure. An exception in state law exists for the discovery of comments made by a defendant during such meetings, the court said.
• In January, a federal court in Massachusetts ordered a hospital to produce documents related to its residency program after a former surgical resident sued the hospital. The judge said federal interests in fighting employment discrimination preempt state law that protects the documents.
• Physician organizations are following a case before the Illinois Appellate Court that threatens confidentiality protections under the Patient Safety and Quality Improvement Act. The federal law encourages physicians, pharmacies and hospitals to report medical error information to patient safety organizations. The Litigation Center of the American Medical Association and the State Medical Societies, along with the Illinois State Medical Society, filed a joint court brief in support of Walgreens, which was sued by the Illinois Dept. of Financial and Professional Regulation for refusing to release reports of medication errors. Walgreens says the information was prepared as part of its patient safety evaluation system, which is privileged under the law.

Some courts, including those in Kentucky and Idaho, have upheld confidentiality protections in recent rulings. Yet there seems to be a shift among courts in how they are analyzing peer review cases, said Michael Moroney, a New Jersey health law attorney who represents physicians in state and federal cases.

“The climate has definitely changed,” he said. “The courts are taking a much closer look at individual documents. They’re being much more sensitive to the plaintiffs’ requests. It doesn’t mean all documents will be discoverable, but the climate is such that courts are at least entertaining it.”

Physicians worry that this change in courtroom dynamics could lead to hesitation among doctors to participate in peer review committees, thus impacting quality-of-care efforts. “It’s extremely alarming, because for three decades, we’ve had inviolate protections for peer review documents and discussions,” said Gordon Smith, executive vice president of the Maine Medical Assn., referring to the May ruling in that state. “In any civil or administrative action, they’ve not been admitted.”

Courts that have allowed peer review files to be discoverable seem to follow one of two lines of reasoning. In some rulings, judges have cited the disclosure as appropriate because of conflicting state laws or overriding federal regulations. In other decisions, courts have said the documents are not privileged because of how or why they were created.

For instance, in 2011 a Pennsylvania court ruled that an incident report made by a hospital after a patient fell outside the facility was not protected. The patient had sued the hospital and doctors, claiming he had been released negligently from the emergency department after a vehicle crash.

The judge said the incident report could have been created for police or insurance purposes.

Health professionals must prove that a document was created solely for a peer review or quality improvement purpose to better defend its protection, said Michael Callahan, a Chicago attorney and vice chair of the Medical Staff Credentialing and Peer Review Practice Group for the American Health Lawyers Assn.

“The general view of courts is that everything is discoverable,” Callahan said. “If you are asserting a confidentiality statute, you really have to do a good job describing to the court why it’s protected.”

The rulings can have a ripple effect. A 2006 decision by the Rhode Island Supreme Court narrowed the definition of protected medical peer review, specifying that documents are protected only if they stem from formal proceedings about a specific instance of clinical service. Reviews related to a doctor’s bedside manner or communication skills are not subject to protection, the court said.

As a result, the Rhode Island Medical Society “has incurred substantial legal costs over the past several years fighting subpoenas from trial lawyers for peer review records,” said Newell E. Warde, PhD, executive director of the medical society. “We have been at an unfortunate disadvantage in these confrontations.”

The AMA’s policy position is that proceedings, records, findings and recommendations of a peer review organization are not subject to discovery. In medical liability actions, the privilege protects reviews of the defendant physician’s specific treatment of the plaintiff and extends to reviews of treatment the physician has provided to patients other than the plaintiff, the policy says.

Frustrated with court decisions, some are seeking legislative remedies. In South Carolina, doctors are supporting a Senate bill that would close a loophole in existing law that is allowing plaintiff attorneys to acquire peer review documents at trial, said Scott Hultstrand, director of legislative affairs for the South Carolina Medical Assn. A proposal in Colorado would broaden protection to share review information among health care organizations and protect peer evaluations of physician assistants, as well as doctors.

In 2011, Wisconsin enacted a tougher law to protect sharing of peer review information among related health entities and public health organizations.

Catherine J. Flynn, a New Jersey medical liability defense attorney, said the closer scrutiny by courts could prompt health professionals to re-evaluate their policies and procedures.

That “will cause a revisiting of the peer review process for hospitals and doctors to ensure that we’re doing the process the correct way and that we’re handling the documentation of that process in such a way that we can maximize the protections of those documents,” she said.