Physicians must think twice before sending any potentially critical information regarding a colleague via e-mail or other casual form of communication.
As more physicians transition from independent practice to hospital employment, they must be offered training on the myriad of issues that differ in an institutional setting. Numerous rules, regulations and laws affect an institutional employer and its medical staff of which a physician, used to being in private practice, may not be aware.
I recently was involved in the sale of a physician practice. The senior physician in the group settled into his new employment and found himself in a supervisory role with the responsibility of overseeing others within his specialty. An incident occurred during which another physician displayed what my client felt was shocking clinical behavior. My client decided he was bound professionally, and morally, to report the event to his superiors. He took it upon himself to e-mail the hospital’s chief medical officer to seek guidance on how to address the incident. My client was shocked when he was promptly, and sharply, informed that his e-mail was inappropriate. He was further informed that "QA concerns" were to be submitted via the occurrence reporting system of the hospital in order to be processed through the medical staff peer review process.
Many physicians reading this blog will no doubt be nodding their heads, having understood the faux-pas committed in this instance. Physicians are not supposed to openly discuss physician quality issues, lest the facts become discoverable in a court of law, such as in a malpractice lawsuit. Only if the quality issues are handled through the medical staff peer review process will the discussion be protected under state law. In the case of my client, he was employed and put into a supervisory position without training on how to share quality issues. He had no previous institutional experience with a peer review process and had no idea of the existence of his employer’s occurrence reporting system.
The “peer review privilege” is a special status that protects communications that occur when healthcare providers review and critique their peers, with the goal of healthcare improvement. Issues about a particular case or physician are often part of peer review. Peer review protections are very state specific; however, most states generally protect some portion, if not all, of peer review proceedings.
One of the incentives behind peer review protection is to encourage physicians to participate in a discussion about quality assurance in a protected environment. In the protected peer review process, a physician is not supposed to worry about losing referrals, being considered an “informant,” or worry about any potential defamation or other lawsuits because he shared his professional opinion or observation. This is especially true if the peer review leads to another physician’s termination, suspension, or denial of staff privilege. Even more important is the need for physicians to be able to talk about mistakes and quality, where such comments cannot be required to be produced during discovery or introduced in a legal action, particularly a medical malpractice lawsuit or licensure hearing.
At this time, all 50 states, the District of Columbia, and the federal government have passed statutes designed to protect communications that are part of the peer review process and/or provide immunity for those participating in the peer review process. It is important that healthcare providers understand what the case law in their state determines is protected, and that physicians remain educated on how to assure protection for comments, e-mails, and other documentation that might be created to provide appropriate and necessary feedback about another physician’s medical activities.
As healthcare institutions bring more doctors into their organizations, either through direct employment or clinical integration, they must provide clear training on the process of sharing information about other providers. Physicians should always question themselves before sending any private or potentially critical information regarding a patient, a colleague, or any other individual via e-mail or other casual form of communication without checking to see whether safeguards are mandated or appropriate. This will protect the peer review process, but will also protect the physician sending the e-mail as well. Even the best intended commentary about another provider’s professional work can open the sharing physician to potential litigation, harassment, and discipline.