Peer Review Privilege and Medical Malpractice

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Peer Review Privilege and Medical Malpractice

February 14, 2019
By Lafferty Gallagher Scott

Peer review is the process by which physicians affiliated with a particular hospital evaluate the quality of care provided by their fellow physicians and identify opportunities to improve care. During the peer review process, physicians whose patients have had an unexpected medical outcome present their patients’ cases to a peer review committee. The peer review committee then determines whether the physician should have acted differently in treating the patient.

The peer review “privilege” prevents patients from obtaining the hospital records prepared in connection with these peer review proceedings. Nearly every state has a statute that codifies the peer review privilege. The privilege was created to promote complete and candid peer review by ensuring the confidentiality of the process. The aim of the privilege is that through the process, physicians can learn from each other without fearing that a critique of a colleague could end up as the most damning evidence against that colleague in a medical malpractice suit.

As a result of the privilege, peer review information is barred from evidence in medical malpractice trials. This means that even if every physician on a hospital peer review committee agrees that a patient’s treatment constituted malpractice, the patient does not have the benefit of bringing that information before a jury if the patient later brings a malpractice action. Whether the benefit of promoting candid peer evaluations outweighs the patient’s right to know if he or she has been negligently treated is a matter for debate.

The peer review statutes vary in the specifics from state to state. In general, however, the statutes protect from disclosure any proceedings, reports and records of a medical peer review committee. Under most states’ laws, the privilege only extends to records produced within a formal peer review process. Thus, a physician or hospital trying to maintain the confidentiality of peer review records generally has to establish that the hospital has a peer review procedure in place that is formalized in the hospital by-laws. In addition, the party seeking to bar disclosure of peer review records is required to demonstrate that the records were created as a required part of that process. For example, notes taken by a physician observer to a peer review of a case may not be privileged under certain circumstances. Judges are responsible for making rulings as to whether the peer review privilege applies to a particular document.










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