Is confidential peer review in jeopardy?
Is confidential peer review in jeopardy?
That depends on how you claim privilege
Several legal cases decided in recent months have rendered material discoverable that doctors thought was protected. These cases — in places as varied as New York, New England, and Illinois — have caused some physicians to question whether they should participate in peer review processes if their comments and discussions can end up being used against them in civil litigation.
In a case in Maine last May, a judge said that patients have the right to defend themselves in criminal trials, and they can use materials created during a peer review process if it helps them do so. That case is being appealed. A month earlier, a New York court ruled in a credentialing case that comments during a peer review meeting may be disclosed, and ordered a private review of the notes from the meeting. Other cases went against peer review in places such as Florida — where confidentiality of peer review was largely repealed by state vote — and Massachusetts.
Not all the challenges to confidentiality are upheld. In a case involving Walgreens drug stores in Illinois, courts upheld the dismissal of a suit from a state agency asking three pharmacists to divulge reports on medication errors that they believed were part of the peer review process (http://www.kattenlaw.com/files/upload/The_Department_of_Financial_and_Professional_Regulation_v_Walgreen_Company.pdf). This case was the first that was brought where the defense used provisions of the Patient Safety and Quality Improvement Act and the use of patient safety organizations (PSOs).
The Illinois decision in particular is good because "any erosion of the protection afforded by the privileged nature of peer review will have a detrimental impact on care," says Kevin Troutman, chair of the national healthcare practice of Fisher & Phillips, a labor and employment law firm in Houston. "If it chills the doctor's willingness to participate in peer review or their feeling that they can speak freely, then you lose what the peer review process is supposed to be about."
In almost every case where discovery of peer review materials has been allowed, Troutman says mistakes were made by not "carefully prescribing when and how you engage in peer review activity." If it's peer review activity, it must be only peer review activity. Nothing else can be mixed in, he says.
The minutes of meetings should reflect that, Troutman continues, and if there is someone participating in a particular committee meeting who is not involved in peer review and that topic comes up, that person should be asked to leave.
Such cases can occur when peer review reports are channeled up to the executive committee, he adds.
In addition, forms should be appropriately identified and marked as being solely for peer review, says Troutman, and hospitals should train physicians so that they know never to have casual discussions about peer review cases outside the confines of peer review meetings. If the wrong person hears or finds out about such discussions, the entire work product related to that case could end up being discoverable.
Michael Callahan, a partner at Katten Muchin Rosenman LLP in Chicago, worked for the defendant on the Walgreens case that was decided the first week in June. "Most states have had confidentiality provisions for peer review for some time," he says. "As a general proposition, courts have, with some degree of regularity, supported them as a means to help achieve better care."
Indeed, like Troutman, he thinks that if confidentiality is seriously challenged, then physicians will stop participating. That said, courts generally proceed in a case with the idea that everything is discoverable, including items that a hospital or a physician thinks is protected work product. It is up to the person asserting privilege to prove that it isn't, Callahan says.
According to Callahan, there have been maybe 40 or 50 cases in Illinois where state law governing privilege was a factor. In one case, he recalls, a hospital's department of risk management created an incident report and then presented it to the peer review committee, which prepared its own report. A malpractice suit followed, and while the hospital claimed protection for both the peer review committee report and the one by risk management, the court ruled that you can't take a document you made for one purpose, run it through the peer review committee, and call it privileged. It's discoverable if it wasn't originally created for peer review purposes.
In another case, an anesthesiologist suspected a surgeon was doing surgeries that were unnecessary or upcoded. He brought that to the attention of the chairman of the board, who told the doctor to write up a report. He did. The surgeon was asked to respond. He sued the anesthesiologist for defamation. The anesthesiologist objected, saying he prepared the report at the request of the board chairman and it should be protected. The court said no, the individual is not a committee and the report doesn't count as privileged work product of the committee.
While all state laws governing privileges are different, Callahan says they tend to be very similar, and the above examples "show how hyper-technical the cases can be. The courts won't stretch. Even if you can argue that the chairman of the board is a designee of the peer review committee, even if that seems obvious to you, you had better make sure you can prove to the court that it's true."
In the end, the general rule is that there are no general rules, he says. There are specific rules, actual parameters that govern what is protected and what isn't. The cases that have happened in the last six months show instances where those parameters weren't followed, or where people tried to stretch them. "Where providers often fail," Callahan says, "is they assume that everything is protected and do not consider the steps that have to be taken to ensure that something is. They don't know the rules."
Look at the issue of profiling reports, Callahan says. These reports include information on physician use of medications, the consultants they use, the average length of stay for their patients, and how their quality of care compares to their peers. Those reports often mark outliers in utilization and quality metrics. "If I serve a subpoena on you for those reports, and it shows that there are the same outliers on quality time and again, and that you did nothing to modify their behavior, it provides a great paper trail for a suit. And it's not confidential because you didn't have a peer review committee ask for those profiling reports to be generated."
Indeed, the rule for hospitals — and the one they should be teaching their physicians — is to assume that nothing is confidential unless you can prove that it is — and not to your peers, but to a judge, because that is the person who will ultimately decide, Callahan says.
Judges don't know from the Patient Safety and Quality Improvement Act, he continues. It states that patient safety organizations (PSOs) don't need to document that something is protected for peer review purposes. "But you still have to convince a judge that the statute applies in this case."
Standing on principle doesn't work, Callahan says. It can be obvious to you and even to your lawyer that something is confidential and the courts can rule against you because you haven't explained why it is peer review. "A lot of people have had to learn that lesson the hard way."
Along with educating your physicians and other committee members on the specifics of your law and adhering to it to the letter, you should be ready to counter the kinds of arguments that people can make to undermine assertions of privilege, Callahan says. "We will get more and more challenges."
Because of this, Callahan says more organizations will start to embrace the PSO protections — like in Florida, where there is no statute protecting confidentiality any more. And PSO protections apply not just to doctors, but to all licensed providers. "The reality is that there are few providers who are taking advantage of PSOs right now. That will change."
So if PSOs offer these protections, should you let it all hang out and figure you are safe from discovery? No way, Callahan says. You need to use the provisions of both your state laws and the Patient Safety and Quality Improvement Act. While now you have the ability to protect even management activities, as well as other patient safety programs and materials from the prying eyes of plaintiffs and their attorneys, "you have to do it the right way," he says.
That means following some basic rules, Callahan says, such as knowing:
- if the information you want to protect is part of the patient safety evaluation system (PSES);
- if it was collected and reported to the PSO, and whether you have documentation that it was;
- that you have a record of all your PSES policies related to documentation;
- if it wasn't reported to the PSO yet, why not and how long has it been held? And is such a delay standard or not in your organization?;
- whether you have used any of the requested information for any other purpose;
- if you report this information as part of some mandatory reporting to state or federal agencies or organizations.
The challenges to peer review product are not over, says Troutman. If anything, he expects they will increase. "Ultimately, though, as medical staffs and hospitals understand what is leading to privilege not being upheld, they will adapt and get better at ensuring that their peer review processes and materials cannot be successfully challenged."
For more information on this topic, contact:
- Kevin Troutman, Partner, Fisher & Phillips LLP. Houston, TX. Telephone: (713) 292-0150. Email: Email: [email protected].
- Michael R. Callahan, Partner, Katten Muchin Rosenman LLP. Chicago, IL. Telephone: (312) 902-5634.
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