Check state law before disclosing records
April 1, 1996 4 minutes read
Check state law before disclosing records
By Thomas Schieffelin, JD, and Lori A. Wellbaum, JD
Adams, Hill, Reis, Adams, Hall & Schieffelin
Orlando, FL
In 1992, "Dr. A," an anesthesiologist with staff privileges at a California hospital, was investigated by that state's medical licensing board, the California Board of Medicine. The board issued an administrative subpoena to the hospital for its peer review materials developed when Dr. A went before the hospital's medical executive committee and admitted to drug use. The subpoena was issued after the hospital's medical staff coordinator and medical staff president voluntarily disclosed to a board investigator that Dr. A had admitted drug use to the medical executive committee.
The hospital refused to comply with the administrative subpoena, claiming that all the records sought by the board were privileged under California's peer review statute. The board filed a petition in county court for an order compelling the hospital to produce the documents. Its petition was granted, and the hospital appealed.
The California statute provides that "[n]either the proceedings nor the records . . . of a peer review body . . . shall be subject to discovery." The board and the hospital argued vigorously over whether the scope of prohibited discovery included not only civil adversarial proceedings but administrative proceedings as well.
Additionally, the parties debated whether the legislative intent to protect the public's welfare by meaningful peer review and physician self-policing was better accomplished by the limited protection from discovery in medical malpractice actions at the expense of some civil litigants, or by the broader protection from all discovery, including administrative actions, at the expense of the state agency whose function it is to investigate and discipline impaired or incompetent physicians.
The appellate court found that the privilege protecting peer review records from discovery applied only to pretrial discovery in civil adversary proceedings and not administrative actions. Looking to the legislative history behind the state's peer review statute, they noted it was enacted in response to a court ruling allowing a medical malpractice plaintiff discovery of peer review materials. Thus, the court believed that this privilege was not intended to intrude upon the investigatory authority given to the board through its administrative subpoena power. Although the appellate court recognized that the peer review process might be weakened by this limited discovery in administrative actions, it reasoned that if this is a danger, it should be addressed by the legislature. Therefore, the hospital was ordered to produce the requested peer review materials.
[Arnett v. Dal Cielo, 42 Cal. Rptr. 2d, 712 (Cal. App. 1 Dist. 1995).]
COMMENTARY
The statutes and case law that create and define the scope of any given peer review privilege will vary from state to state. In Florida, for example, the legislature recognized the chilling effect that discovery of peer review proceedings has on full, frank, and candid peer review, not only when discovered by a medical malpractice plaintiff, but also when discovered by a state agency who may revoke the medical license of one of their peers. As such, Florida has extended its peer review privilege to administrative actions. Therefore, before honoring a subpoena from any administrative body for peer review material, the hospital risk manager should become familiar with the applicable law in his or her state and consult with legal counsel knowledgeable in this field before complying.
It is also important to understand that this privilege usually extends not only to the peer review records but also to the proceeding itself. In other words, the peer review committee members usually are protected from disclosing not only their records, but also what they may have learned, heard, or said during a peer review meeting. This makes sense because the privilege would be virtually meaningless if records were protected but the peer review participants were nevertheless forced to disclose what occurred during any given proceeding. Thus, risk managers need to advise committee members that the law in their state may prevent them not only from disclosing peer review records to private patients (or their attorneys), but also from discussing their peer review activities with investigators from state licensing or disciplinary agencies. This is best done proactively, because committee members who do not know otherwise may disclose this information without realizing that the investigator was not entitled to it.
One final caveat: Many medical staff bylaws provide that the activities of peer review credentialing committees are confidential to the extent permitted by law. Hospitals or physicians who breach this confidentiality by voluntarily disclosing peer review records or activities deemed privileged under state law may be in violation of these bylaws. A physician suing a hospital and/or its peer review committee members under antitrust or restraint-of-trade laws may be able to prove malice or a lack of good faith more easily by showing that the hospital and/or committee members intentionally disclosed this confidential information when the law protected it and their own rules of conduct (i.e., their bylaws) prevented it, as well. *
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