In its article "Peer Review Protection Varies by State — and Could Be in Jeopardy," Healthcare Risk Management quoted healthcare partner Khaled J. Klele extensively about peer review privilege for quality assurance processes in healthcare organizations.
"While all states have enacted some legislation to protect the peer review process, these statutes vary from state to state in terms of the level of protection," said Khaled in the article. He noted that, in most states, the privilege is limited to certain committees that are formed in hospitals or for certain topics, such as adverse events.
Khaled explained that, for example, the applicable New Jersey statute provides a privilege limited to only documents submitted to the Department of Health in connection with certain adverse events and documents used "exclusively" during self-critical analysis, which is further limited to three scenarios. Like New Jersey, the courts in Pennsylvania have held that Pennsylvania's Peer Review Protection Act only applies to documents that were generated and used exclusively by a peer review committee. New Jersey also provides immunity for utilization review committees. A party challenging the privilege can demand the court review the subject documents in camera for purposes of making privilege determinations.
"Unlike some privileges, such as the attorney-client privilege, many courts tend to narrowly construe the privilege governing the peer review process," Khaled noted. "Indeed, courts tend to reject the privilege for a number of reasons, including, among others, if the facility did not follow the statutory requirements for invoking the privilege, such as having members on the peer review committee that did not have certain qualifications, the facility did not follow its policies and procedures regarding the committee that was established to conduct the peer review, confidentiality was not maintained, or the process was used to retaliate against a physician."
He said that this is played out more often in the context of sham peer reviews, where a healthcare provider argues the peer review privilege should not apply because the hospital used the process to restrict or terminate the physician's privileges to retaliate against the physician for raising concerns about the hospital.
"It is critically important to understand the laws that govern privilege in the state in which you operate," Khaled said. He explained that if the privilege is limited to certain committees and staff, then you must properly structure the committee or appoint the appropriate staff members. If the hospital hires a third party to investigate, results may not be covered by the privilege depending on the laws of the state in question.
He added that the policies and procedures of the committee should be established and revised to match state law and should be strictly followed. The facility should periodically review those policies and procedures, especially if a court in the state issues a precedential opinion on the privilege.
"Anyone participating in the process should maintain the confidentiality of the process to prevent disclosure to third parties," Khaled stated. "The peer review process should be used for its intended purpose, and not to shield nefarious conduct or to retaliate against the healthcare provider."
For the full article, go to Healthcare Risk Management.