Five tips for maximizing peer review privileges in a physician’s practice

The peer review privilege refers to laws that protect the records and proceedings of peer review committees from disclosure outside the peer review process. Peer review privileges can apply to multiple credentialing, privileging and quality assurance and improvement processes; however, this article focuses on the peer review privilege as it relates to the evaluation of adverse outcomes.

Most states want to encourage the use of peer review panels to improve patient healthcare[1] and have passed legislation providing broad privileges to documents generated for peer review, such as peer review evaluation forms, claims review reports, root cause analysis reports, notes relating to root cause analysis, and other quality management documents, as well as associated proceedings.[2] Granting privilege helps foster an environment where physicians feel safe to speak openly and candidly about adverse outcomes and the quality of patient care.[3]

This article will explain what practices generally increase the likelihood that communications or documents will be deemed privileged. Notably, physicians can conduct peer review without a formalized committee. Generally, ad hoc committees receive the same peer review privilege as formal review committees in larger hospitals. However, there are certain steps that all physicians should take to maximize the likelihood a court will find a document falls under the definition of peer review materials and therefore privileged.

1. Sequestration

Courts do not want to overextend evidentiary privileges, so keeping peer review material separate from other nonprivileged business is essential. Physicians should ensure that all discussions, files, documents and communications regarding quality assurance and adverse outcomes are separate from other business and committees. Most states require peer review committees meet for the specific purpose of peer review, which includes evaluating areas to improve the quality of healthcare, determining a healthcare provider’s adherence to the standard of care, and even examining whether the cost of care was determined within the standard of care.[4] If the purpose of a particular committee is something other than peer review but the discussion becomes about to quality assurance, a court may find the committee is not a peer review committee and is therefore ineligible for privilege protections, waiving any protections that may have been appropriate. A peer review committee can be comprised of the same members as another committee and may even take place in the same location; however, it should be obvious when one committee’s business ends and the peer review committee’s business begins.

2. Procedure

Most states only grant privileges to documents generated by, within or for a peer review committee. Therefore, making it obvious when a committee begins and ends an investigation is imperative.[5] If a physician begins doing quality assurance research and discussion before or outside of a peer review committee, it is unlikely any material generated will be privileged.[6]

The more regimented and routine a peer review committee becomes, the more likely the committee's documents and communications will receive privileges. Thus, it is important to develop procedures to alert a committee when an adverse outcome is being reviewed, and to obtain and develop information expressly for the committee. Physicians can do this by using a submission form created exclusively for the peer review committee, or even a verbal request to the committee chair. Another way to ensure privilege protections is by keeping clear minutes of the peer review committee meeting to document the intent of the meeting as peer review and the members of the committee in attendance. The development of procedures is not to discourage the use of ad hoc committees; however, it is safer to have more formalized procedures than less, as it indicates to a court that the materials and discussions are explicitly for quality assurance.

3. Identification

Documents describing how a peer review committee operates and quality assurance documents are typically privileged.[7] Labeling these documents as “Confidential Peer Review Materials” will not alone create privilege but will demonstrate to an outside observer the documents purpose and the legitimacy of the peer review committee. In addition to labeling documents as confidential, it is important to make sure the document’s title clearly identifies its nature. Documents created and kept as a regular course of business and not created for or by the committee’s direction, such as medical records or incident reports, are generally discoverable, and thus not subject to peer review protections.[8] Being able to readily identify what is confidential committee business and why will make it more likely a court will determine the document is privileged.

4. Confidentiality

Like all privileges, peer review privilege can be waived. This can be done deliberately through a waiver or accidentally by revealing confidential peer review information to a person or entity who was not party to the peer review committee. Because of this, it is vital committee members keep control over information that was revealed through the peer review process. This can be facilitated by incorporating the foregoing tips. First, keep peer review material separate from other business. Second, require the committee meeting be closed, and acknowledge the proceedings are confidential. Third, do not discuss peer review issues outside of the committee. Finally, label confidential materials as such to alert others to the nature of the material and remind committee members of the importance of confidentiality. These steps will decrease the chances of accidentally breaching confidentiality and waiving privilege.

5. Professional help

Although these tips are generally applicable, the extent of the privilege depends entirely upon the laws of the jurisdiction where a patient is receiving care.[9] Physicians treating patients through telehealth may then have to navigate the laws of multiple states to determine what information is privileged. These laws can vary significantly. For example, Iowa protects all information, files and reports that relate to the subject of a peer review,[10] while Texas requires that a record be of a peer review committee to be privileged.[11] Distinguish this from federal law, which does not recognize any peer review privilege. Because of these differences, it is crucial to reach out to a local healthcare attorney or professional liability insurance provider for state-specific guidance on what steps you should take to protect your privileged information.

Jori Quinlan is a partner at Hall Booth Smith, and Jenny Swajkoski is an associate at Hall Booth Smith, where their practice focuses on medical malpractice and healthcare matters. Annabelle Smith is a summer associate at Hall Booth Smith and a law student at the Alexander Blewett III School of Law at the University of Montana. Jori Quinlan can be reached at (406) 317-0077 or jquinlan@hallboothsmith.com. Jennifer Swajkoski can be reached at (406) 317-0074 or jswajkoski@hallboothsmith.com.

[1]Wigmore on Evidence § 7.8.2, Privilege for Medical Peer Review.

[2]Cleveland Clinic Health System­—East Region v. Innovative Placements, Inc., 283 F.R.D. 362 (N.D. Ohio 2012); Zander v. Craig Hosp., 743 F. Supp. 2d 1225 (D. Colo. 2010); Mnookin v. Nw. Cmty. Hosp., 2018 IL App (1st) 171107, 109 N.E.3d 353.

[3] William D. Bremer, Annotation, Scope and Extent of Protection From Disclosure of Medical Peer Review Proceedings Relating to Claim in Medical Malpractice Action, 69 A.L.R. 5th 559, § 2 (Westlaw through July 13, 2022).

[4] Mass. Gen. Laws Ann. ch. 111, § 1 (West 2021).

[5]Bremer, supra note 1, § 14.

[6]Roach v. Springfield Clinic, 157 Ill. 2d 29, 623 N.E.2d 246 (1993).

[7]Mnookin v. Nw. Cmty. Hosp., 2018 IL App (1st) 171107, 109 N.E.3d 353.

[8]In re Living Centers of Tex., Inc. 175 S.W.3d 253 (Tex. 2005).

[9] Rachel A. Lindor, et al., State Variability in Peer Review Protections Heightens Liability Risks, 5(2) Mayo Clin. Proc. Innov. Qual Outcomes 476–79, Feb. 2021.

[10]Day v. The Finley Hosp.,769 N.W.2d 898 (Iowa 2009); Iowa Code Ann. § 147.135(2) (West 2022).

[11] Tex. Occ. Code Ann. § 160.007 (West 2021).