Can Medical Peer Review Privilege Be Waived?
Providers, lawyers, and medical records review firms must understand that the medical peer review privilege could be waived under certain circumstances.
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Medical records review and medical peer review typically provided by in-house medical record reviewers or a medical review company are significant processes in medical litigation from the standpoint of understanding the medical issues involved. Medical peer review is a highly sensitive process and the information gathered during an internal peer review of medical treatment and patient care is safeguarded from discovery and trial in civil litigation by the Medical Peer Review Privilege. Typically, peer review may occur in medical practice groups, hospitals, non-hospital institutional providers, and third-party health insurers. What Is Medical Peer Review Privilege? Peer review documents are candid and provide an objective evaluation of what was done right and wrong during a surgery or other treatment procedure. These documents are vital to patient health and safety and for quality control purposes. The Medical Peer Review Privilege enables “a safe forum in which medical professionals can review the quality of care and work to reduce medical errors.� (Lisa M. Nijm, Pitfalls of Peer Review: The Limited Protections of State and Federal Peer Review Law for Physicians). Federal, state, and local peer review statutes and regulations exist to provide protection for peer review records from public disclosure. The Federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) safeguards from disclosure under certain
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circumstances, “patient safety work product” such as records and statements used to develop and improve patient safety, quality of health care, and healthcare outcomes. Lisa M. Nijm, in her “A Fifty-State Survey of the Medical Peer Review Privilege” says that with the exception of New Jersey, all U.S. states and the District of Columbia have enacted statutes affording some degree of protection of the disclosure of peer review information. Peer review meeting participants cannot be forced to testify in a civil court regarding what happened or was said during the meeting. However, it is important to understand that this protection is not absolute or unconditional. A Case of Peer Review Privilege Waiver In a recent medical malpractice case in Virginia, the peer review privilege was waived over discovery. In this case, the patient had died following a cardiac catheterization and the defendant hospital refused to produce the concerned peer review documents including a “root cause analysis” (RCA). Creasy v. Medical Assocs. of Southwest Virginia, Inc., et al. (Montgomery County, Va. Circuit Court Case No. CL17-1582, 28 Va. Cir. LEXUS 56 (April 16, 2018)). The hospital included these documents in its privilege log along with explanations such as the RCA was prepared for purposes of improvement of quality of care and patient safety. They argued that the Federal PSQIA and Virginia statute
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safeguarded the documents from disclosure. However, this was not accepted by the plaintiff’s side that pointed out issues such as: The hospital’s attorney had not seen the documents The hospital did not provide an adequate description of the withheld documents to justify the claimed privilege The plaintiff’s attorney argued that the hospital waived any privilege asserted under the statutes. The court ruled in favor of the plaintiff and ordered production of the concerned documents. The court maintained that the hospital waived any privilege that was available under the Federal PSQIA and state statutes because it failed to provide an effectively descriptive privilege log that contained evidence to support their claimed privilege. The court also said that hospital counsel have acted in bad faith by failing to comply with the Rules of the Supreme Court of Virginia. Moreover, they have signed discovery responses claiming certain documents are privileged without reviewing the documents. When the documents were produced and disclosed, the plaintiff’s attorney said they found a number of crucial facts that were not mentioned anywhere in the plaintiff’s medical records. Some of that information was quite damaging to the hospital from the standpoint of liability.
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You Could Forego Medical Peer Review Privilege The important message to healthcare providers is that courts are strict in interpreting peer review protection statutes. Unless the peer review records are created in absolute compliance with legal and regulatory requirements, providers cannot stay assured that their medical peer review records are safeguarded against public disclosure. There are various risks intrinsic to peer review document systems. Healthcare providers, trial attorneys, medical records review companies must all stay fully informed about medical peer review privileges in their particular jurisdiction and take all measures necessary to safeguard the Medical Peer Review Privilege and protect sensitive patient documents from public disclosure. It is important that they meet each and every stipulation of a compliant privilege log. In addition, all documents that they claim to be privileged must be carefully reviewed. Only with constant scrutiny and follow-up and the best compliance measures can they ensure full protection under the peer review privilege. Disclaimer: The content in this article is sourced from various reliable internet resources, and does not constitute professional legal advice. The information provided here is not the inference or conclusion of Managed Outsource Solutions (MOS). For professional legal advice on this topic, please consult an attorney.
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