The medical peer review privilege can be waived if certain conditions are not met. In a recent malpractice case, a hospital claimed peer review privilege for documents including a root cause analysis of a patient's death. However, the court ruled the privilege was waived because the hospital failed to provide an adequately descriptive privilege log and the attorney had not reviewed the documents. When produced, the documents revealed crucial facts not in the medical records that were damaging to the hospital's liability. Healthcare providers and review companies must understand jurisdiction-specific peer review laws and ensure all legal requirements are followed to maintain privilege protection of sensitive documents.

1. 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.