Two Courts Change the Scope of What’s Protected Under Medical Peer Review Statutes

court gavel on medical record malpractice concept

When a plaintiff sues a doctor for malpractice, the medical facility may also be culpable for negligent credentialing. Healthcare entities have a responsibility to properly vet, credential, and periodically reevaluate practitioners to whom they grant privileges. Thus, they may incur liability for negligent credentialing if their granting or monitoring of privileges leads to patient harm. In such lawsuits, plaintiffs often file motions for hospital credentialing committees to turn over certain documents. Two recent rulings – in Delaware and Pennsylvania – changed the scope of what is subject to discovery under peer review statutes in those states.

Credentialing and Peer Review

Credentialing is the process by which healthcare entities evaluate a medical provider’s qualifications and clinical practice history before allowing the provider to treat patients at the entity’s facilities. Collecting and evaluating assessments by former supervisors and peers is an important component of the credentialing process. Most states have peer review laws, which provide confidentiality and legal immunity to those participating in peer review, and such laws typically prevent plaintiffs from obtaining hospital records prepared in connection with peer review activity. The laws are based on the premise that these protections are necessary to encourage medical professionals to provide candid feedback about other professionals, which enables hospitals to make informed decisions about granting privileges, and thus are crucial to ensuring patient safety and public health.

Delaware Case

After Vance Palmer suffered a stroke during brain surgery and died from subsequent complications, his widow sued the neurosurgeon, Dr. Bikash Bose, and the hospital, Christiana Care Health Services, Inc. The plaintiff alleged Dr. Bose negligently performed an unnecessary surgery and that the hospital negligently recredential Dr. Bose allowing him to do so, despite being aware of his reputation and history of negligence. Prior to the surgery, the hospital had been named as a co-defendant in 15 of 31 medical malpractice lawsuits against Dr. Bose, the plaintiff alleged. The plaintiff sought certain documents from the hospital, including information about peer review meetings concerning Dr. Bose. The hospital declined to produce the documents, citing peer review privilege under Delaware’s statute.

Delaware Superior Court held that the scope of peer review discovery depends on which committee – the credentialing committee versus the quality assurance committee – is being queried and the type of information being sought. “An employment dispute over credentials is a different animal from a medical negligence dispute over patient care,” the Court said. “They may both invoke peer review privilege, but the core of what the statute seeks to protect is implicated in different ways in each case.”

The Court noted the quality assurance committee focuses on matters such as analyzing unanticipated events that resulted in death or serious harm to a patient with the goal of improving quality of care. “Those peer review committee discussions represent the core of what a peer review privilege must protect, for without the immunity of the peer review privilege, it is doubtful the peer review of such cases would happen at all,” the Court stated.

By contrast, credentialing involves “the review of medical records, medical care and physicians’ work,” the Court said. “But an inquiry into credentialing is less likely to probe the details of a single bad surgical outcome. A credentials committee may have to ask and answer questions about less than positive information about the physician seeking privileges or an extension of existing privileges. But in the zone of sensitive information the statute was intended to protect, credentialing a doctor to practice at a hospital is more in the nature of a personnel decision than an examination of what went wrong in a bad outcome case that has become the subject of litigation.”

While holding that peer review conducted with regard to this particular surgery is not subject to discovery, the Court allowed limited discovery of documents concerning the credentialing of Dr. Bose, including dates and times of any meetings where his credentials were considered; identification and production of any documents submitted to the credentialing committee for consideration, provided the documents were not produced exclusively for use by the committee; and any documents produced by the credentialing committee that were shared with others concerning Dr. Bose’s credentialing at the hospital.

Pennsylvania Case

Contrary to the Delaware case, the Supreme Court of Pennsylvania broadened what is protected under the state’s peer review statute, overturning a lower court in ruling that all medical peer review documents, even those not generated by a peer review committee, are exempt from discovery.

In Leadbitter v. Keystone Anesthesia Consultants, Ltd., James Leadbitter and his wife sued for negligence after he suffered complications following spinal surgery. The plaintiffs requested the treating physician’s credentialing file, and the hospital produced only the portions of the file that it deemed discoverable, citing privilege under Pennsylvania’s Peer Review Protection Act (PRPA) of 1974.

The statute explicitly states that the “proceedings and documents of a review committee” are protected from discovery. The Superior Court held that the documents had to be turned over because they were from the hospital’s credentialing committee, which the Court considered a “review organization” and not a “review committee” as required by the statute, and therefore, the documents were not protected under the PRPA.

The Pennsylvania Supreme Court reversed and vacated the ruling, stating that any hospital committee, including a credentialing committee, that engages in a form of peer review can be considered a “review committee” for the purposes of the statute.

The Takeaway

While nearly every state has a statute providing some degree of protection for peer review information, these protections vary based on the state and the courts’ interpretation of the language in the statute. It is important for healthcare entities to have a solid understanding of which committees and documents fall under the protections of their state’s statute. Attorneys litigating credentialing claims must be prepared to navigate applicable statutes and case law when considering credentialing claims. Experts in medical credentialing and healthcare administration are also requisite assets.

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