New ruling in NC affirms peer review privacy
AHA concerned about EMTALA loophole
Supporters of keeping peer review committee records confidential got an unexpected shot in the arm recently, when the North Carolina State Supreme Court ruled that information from a medical or peer review committee cannot be used as evidence in any civil action against a hospital or health care provider.
The ruling represents the first good news in a while for confidentiality supporters still reeling from a case in California’s 9th Circuit in which peer review records were allowed into evidence in a federal case involving the Emergency Medical Treatment and Active Labor Act (EMTALA).
The North Carolina ruling came in the case of Virmani v. Presbyterian Health Service Corp, In re Knight Publishing Company. In the lawsuit, Ron Virmani, MD, had sued Presbyterian Hospital challenging its decision to terminate his medical staff privileges. The decision had been based on a medical peer review committee’s conclusion that Virmani wasn’t providing competent care to his patients. When Virmani filed his original complaint with the clerk of court, he attached excerpts of confidential peer review reports. The following day, Presbyterian requested that the trial court seal the peer review materials filed with the complaint and close the hearing when the peer review materials were discussed. The court agreed to do so.
After the court of appeals ordered the trial court to reverse its decision and unseal the peer review documents and open the court proceedings, Presbyterian appealed to the North Carolina Supreme Court. The court concluded:
1. A trial court may close court hearings in which medical peer review documents or materials are discussed.
2. The trial court may seal peer review documents to protect their confidentiality as long as they are presented to the trial court judge and not filed with the clerk of court.
The ruling is significant because it explicitly states that protecting the confidentiality of peer review records is a "compelling public interest," says Sam Southern, JD, an attorney with Smith, Helms, Mulliss, and Moore in Raleigh, NC.
But Southern notes that protecting peer review confidentiality can be a double-edged sword. "If peer review is inadmissible as evidence in court and is not subject to discovery, then it’s not admissible in evidence for anybody," he says. "Even in the Virmani case, Presbyterian Hospital was trying to defend the action it had taken based on the peer review documents. So, while people suing hospitals can’t use peer review against the hospital, the hospital may also be unable to use them to defend itself."
Court unsealed records
The most troubling part of the Virmani decision for hospitals was the court’s decision to unseal the peer review records Virmani had attached to the original complaint. While the records weren’t admissible in court, they did lose their confidentiality and became publicly available to the local media. Even though such records couldn’t hurt you in civil court, they could hurt you in the court of public opinion.
"The good news is that the court is not going to permit that into evidence," Southern says. "And if [the records] had received any publicity in the media, I think the defendant would be entitled to a jury who hadn’t been exposed to it. Ultimately, it’s not going to help the plaintiff or the defendant — whoever seeks to use it."
To reduce the likelihood that a disgruntled physician will waive the peer review privilege and file confidential records with a court, Bo Bobbitt, JD, an attorney with Smith, Anderson in Raleigh, NC, offered the following advice in a memorandum filed with the Raleigh-based North Carolina Hospital Association:
"1. Consider having physicians acknowledge in writing that peer review records are confidential and inadmissible as evidence.
"2. Evaluate what records are legally required to be given to a physician, and limit disclosure to only those records that must be provided."
The American Hospital Association (AHA) in Chicago says that since the controversial EMTALA case in California, in which the 9th Circuit Court ruled that state peer review protections didn’t apply in a federal suit, there’s been no trend toward any further erosion of peer review confidentiality nationwide.
"We’re not tracking cases in a formal way, but I do not sense there is a trend toward significantly limiting the protection, although there will be instances on a regular basis where the extent of the protection gets challenged," says Maureen Mudron, JD, Washington, DC, council for the AHA.
Nevertheless, the EMTALA case itself, which was brought against Clear Lake, CA-based emergency room physician Wolfgang Schug, MD, remains a cause for concern, even though the court’s ruling wasn’t for precedent, even in the 9th Circuit. "The fact is, it happened," Mudron says. "And the concern there is that, in bringing a federal action, one might very well also have a state claim. Would the use of the federal action be a way around what otherwise would not be available under state law? We still don’t know exactly how the terms of that decision will play out."
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content