The challenge to confidentiality in peer review

by
F. Dean Griffen, MD, FACS, Shreveport, LA

Introductory abstract

In our increasingly litigious society, surgeons must be cognizant of the many challenges facing those who engage in peer review and other quality improvement and monitoring activities. This article discusses the very real threats made to the peer review privilege, and it addresses the rules that must be followed when surgeons engage in peer review activities.

Like so many other areas of surgical practice, the review of colleagues is highly regulated. Failure to follow the sometimes seemingly vague rules may result in a waiver of the privilege afforded physicians under the Health Care Quality Improvement Act of 1986. In addition to the federal law, each state has laws governing peer review activities. You should be aware of these laws and regulations and should seek legal advice if you have any questions about your participation in the peer review process.

— Sarah E. Terrace, JD, MPH
ACS General Counsel

The courts are, with increasing frequency, finding peer review materials discoverable in civil cases involving medical malpractice. This erosion of privilege imperils the effectiveness of our current approach to peer review, risk management, and quality assurance. Peer review has long been an important tool used to evaluate and maximize the quality of care that patients receive. To enhance the effectiveness and utility of the health care industry's efforts to monitor and improve its own performance, federal law protects peer review processes against discovery. In 1986, the government found "an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review," and Congress passed the Health Care Quality Improvement Act (HCQIA), 42 USC § 11101. However, the courts interpretations of HCQIA and supporting state legislation increasingly deny this protection.

It is imperative that physicians and physicians organizations relentlessly pursue peer review and find ways to mollify the noxious effects of this loss of privilege. The American College of Surgeons in its Statements on Principles (Section II, p.7, 1998 edition) summons its Fellows accordingly: "The granting and continuation of surgical privileges should be based upon the surgeon's record of demonstrated performance as evaluated by an established peer review mechanism and medical audit."

Accountability

Accountability is the wave of the future. Society seems to demand it. In the health care industry, discovery of peer review information is just one consequence of this trend. In addition, there is a newfound tendency for courts to determine that the Employee Retirement Income Security Act (ERISA) no longer protects employer-sponsored health plans from litigation.1 There are also recently enacted state laws providing for public disclosure of physicians malpractice settlements and hospital disciplinary actions.2 Judges and legislators are responding to society's demands for accountability.

Changes in peer review have increased accountability. The Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) has established a system for reporting "sentinel events." These events are easy targets for plaintiff attorneys and, because physicians have expressed concern that litigation will be enhanced, the JCAHO has pledged to seek "federal legislation and development of model state legislation" to reinforce the confidentiality of such information.3 In addition, the American Medical Association (AMA) is implementing a research program to study systems for evaluating medical errors in an effort to improve clinical outcomes.4 Under pressure from the National Committe for Quality Assurance (NCQA), managed care organizations have embraced peer review, thus increasing the volume of peer review information. As peer review proliferates and becomes more problem focused, accountability and liability of physicians increases.

Resulting both from the glut of peer review material that is very adaptable to liability and from societal pressures favoring accountability, the trial courts have demonstrated enhanced interest in peer review documents. In some states, including (but not limited to) Kentucky, Colorado, Oklahoma, Kansas, and Alabama, judges are, at the request of plaintiff attorneys, declaring peer review documents discoverable.5,6 For example, in Kentucky the appeals process has matured, and the Kentucky Supreme Court has spoken. In Sisters of Charity Health Systems v Larry D. Raikes, the court published its opinion on September 3, 1998, in which it wrote that "peer review participants have no present, valid expectation that their input into peer review proceedings will be shielded from discovery in a medical malpractice suit." This ruling is in spite of both HCQIA and a very strongly worded Kentucky statute, KRS 311.377(2). Fortunately, the court's written report strongly reaffirms the immunity from damage claims by aggrieved physicians against those physicians who conduct or participate in good-faith peer review.

From a physician's perspective, it seems incomprehensible that judges can interpret laws exactly opposite to a physician's perception of the obvious intentions of the legislators that drafted them. Certainly it is not difficult to understand the applicable Oklahoma statute, 63 O.S. 1991 § 1-1709, that states that all peer review information and documents "are declared to be privileged communications which may not be used or offered or received in evidence in any legal proceeding of any kind or character." Paradoxically, in two recent cases (Wisdom v McCall, 1998 OK 31, 69 OBJ 1394, and Rigsby v Lanning, Case No. 91, 149) the Oklahoma Supreme Court ruled on April 13, 1998, and May 18, 1998, respectively, that 63 O.S. 1991 § 1-1709 does not provide confidentiality for peer review information that relates to a defendant physician. Interestingly, this inequity occurred because plaintiffs focused on other phrases in the same law, noting that, to be privileged, peer review materials must be used "in the course of studies" for the purpose of reducing mortality and morbidity and that the results of peer review must be used "only for the purpose of advancing medical research or medical education." In the view of the court, it is apparent that these criteria are not consistent with the confidentiality of peer review for an individual physician's performance in a single case.6 It is clear that laws are like medical data—the interpretation is based on the bias of the interpreter.

In a Kentucky case, judicial bias took a different twist with the same results when the court chose to preempt the specific protective clauses in Kentucky's carefully written peer review law with the broader common law. In Nazareth Literary and Benevolent Inst. v Stephenson, 503 SW 2d 177 (Ky 1973), the Kentucky Supreme Court, in denying the defendant's plea for confidentiality to protect peer review in the best interest of quality health care, wrote that "although this might be regarded as an initially appealing argument, on reflection, one might well debate wherein the public interest lies. Claims of privilege are carefully scrutinized, and impediments to the discovery of truth are afforded validity in relatively few instances in the common law." Simply stated, judges have latitude to interpret the law according to their perception of the best interest of society and the needs of the court.

Federal law addressing peer review proceedings also faces interpretive bias. Health care providers focus on HCQIA's language in §§ 11132 and 11133 that supports the argument that peer review information is privileged, whereas plaintiffs quote § 11115 that states that nothing in the act "...shall be construed as effecting in any manner the rights and remedies afforded patients under any provision of Federal or State law to seek redress for any harm or injury suffered as a result of negligent treatment or care by any physician...."

Confidentiality

The loss of confidentiality in peer review can create problems for aggrieved physicians who are subjects of review, the reviewers, and the peer review process itself, as described below:

• From the perspective of the aggrieved physician, it is reasonable to assume that incriminating peer review information is more damaging than testimony from a plaintiff's hand-picked expert. Constructive criticism from friends used in confidence for the purpose of improving quality of care becomes condemnation from competitors when disclosed to laity for the purpose of litigation. On the other hand, peer review information revealing a breach in the standard of care can be used by the defense team to pursue a pretrial settlement, thus avoiding the agony of prolonged, expensive, pretrial discovery and the risk of even greater losses in an unpredictable trial setting.
• From the perspective of the peer reviewer, participation is a difficult task. Physicians, not unexpectedly, find the process of judging the performance of others extremely unpleasant when quality of care is deficient. Even so, it is a task well worth it when the intent is to improve patient care. With the risk that the information will be discoverable for use in malpractice suits, extreme unpleasantness becomes rancid abhorrence.
• Advocates for privilege in peer review argue that doctors will no longer participate if the results are disclosed for fear of being sued or called as a witness in a medical negligence case.6 This argument, or threat, has failed to influence judicial opinion because, firstly, physicians cannot legally abandon peer review; it is mandated by state and federal law. Secondly, judges consider physicians as too idealistic to abandon peer review. For example, the Supreme Court of Kansas denied privilege of peer review documents in Wesley Medical Center v Clark, 234 Kan. 113(1983), stating that "while it may be true that some members of the medical profession might seek to shirk their duties to others in the profession and to the public by refusing to participate in peer review functions or, in doing so, might be less than candid in their comments and evaluations, we do not ascribe such a lack of integrity to the vast majority of the members of the medical profession. The integrity of the medical profession is held in high esteem by the public and by the courts and we are not convinced that the occasional revelation of some peer review committee proceedings will result in the drastic collapse of the system as envisioned by Wesley."

With the erosion of confidentiality on the one hand and the indubitable necessity for peer review to enhance patient care on the other hand, physicians and their advocates must make adjustments and become better informed to protect the effectiveness of peer review:

Organized medicine

Representatives for organized medicine should review state laws designed to protect privilege in peer review in an effort to detect potential loopholes that can lead to discovery through flawed adjudication. The final word on matters of public policy is spoken by the legislature and only interpreted by the judiciary. When the word is misunderstood, it must be restated differently.

In those states where judges are elected, physicians should support judges who understand the importance of peer review confidentiality. The importance of these elections and methods for physician involvement are reviewed in the January 1998 issue of the ACS Bulletin.7

Defense attorneys

Attorneys for the preservation of confidentiality must continue to pursue just and proper arguments against disclosure. When courts rule for disclosure, all may not be lost; a request for the court to look at the materials "in camera" to first ensure that the judge finds the materials to be relevant before it is otherwise disclosed may be effective.8 Also, it is important to seek a protective order from the trial court prohibiting the use or dissemination of the records beyond the lawsuit for which they were sought.5

Peer review organizations of hospitals and other health care entities5,6,8-10

Peer review organizations should:

• Note the purpose of peer review proceedings on the face of all documents. Because some forms of peer review are not intended to determine whether a physician has adhered to the standard of care with a particular patient in a particular case, properly labeled documents may not be deemed applicable for discovery. Keep these documents, such as those related to credentials and quality improvement actions, in a separate file.
• Never release peer review material to a plaintiff without a court order. Peer review materials cannot be rightfully obtained to pursue a "fishing expedition" before a lawsuit is filed.
• When sharing peer review information between health care entities (in most states no rules limit the voluntary release of peer review information), follow all applicable regulations. Failing to do so will void privilege. Ordinarily, it will be better for the requesting entity to obtain information from the National Practitioner Data Bank (NPDB).
• Design peer review programs following precisely any and all guidelines established in state law. Failing to do so can result in disclosure of materials the confidentiality of which might otherwise have been protected.
• Ensure that incident reports are recorded factually and without opinions and conclusions. The form should reflect that its only purpose is to apprise the risk manager of an incident requiring investigation. Separate investigation forms should be used once notice of an incident is received.
  
• Minimize the use of unnecessary written statements. Peer reviewers should obtain information to the extent possible from interviews, and written materials from these interviews, such as minutes, should be limited to conclusions and thought processes of the peer reviewers.
  
• Ascribe the conclusions and opinions to the committee as a whole rather than naming committee members who make particular motions or statements.
  
• When submitting reports to licensing boards, provide as little factual material as possible, limiting the report to committee conclusions and other information only as requested.
  
• Consider having the relevant materials for cases that are particularly sensitive reviewed by legal counsel prior to final drafting, and all preliminary drafts should be destroyed. The first impression of the judge reviewing the material "in camera" will be more favorable to the defendant if it is properly crafted by an attorney; the judge has considerable discretion in what materials are finally released to the plaintiff's attorney.
  
• Retain peer review documents only as long as required by law.

Peer reviewers5,6,8

Peer reviewers should:

• Be sure that the committee or other venue in which they are participating is legally designed and designated as a peer review committee. Otherwise, peer review information is simply not privileged.
  
• Never make unauthorized disclosures. Statements verbalized in a hospital's "rumor mill" lose privilege, even though they originate in the protection of peer review. Since mortality/morbidity and other teaching conferences are not commonly designed as peer review committees, only appropriate ethical behavior on the part of participating physicians protects quality of care and physician performance information in these venues. Questions of negligence should be referred to an appropriate peer review committee without conclusions or unnecessary inferences.
  
• Be certain that they are insured against liability for peer review participation. Most health care entities indemnify their peer reviewers, but this is not invariably the case. And remember: this indemnification is lost if comments, conclusions, or opinions are provided in a venue other than a properly formatted peer review organization.
  
• Be certain that their deliberations are for the sole purpose of preserving or improving the quality of care.

Aggrieved physicians

Aggrieved physicians should, when perceiving that a peer review organization has reached an incorrect conclusion regarding the quality of care they provided, appeal the decision. Additional information and new insights can rectify a flawed outcome.

When perceiving that a peer review organization has correctly identified a significant problem in the quality of care they provided, and if facing relevant litigation, it may be appropriate to use the peer review decision to help the defense team seek a proper pretrial settlement.

Conclusion

Changes in society's needs and behavior and improved quality and focus of peer review in health care have led to an increased tendency for peer review information to be ruled discoverable in malpractice litigation. Nonetheless, protection for peer reviewers from litigation from aggrieved health care providers remains intact when peer review is conducted in confidence and in keeping with the rules of peer review organizations and state and federal laws. The risk of discovery, by threatening anonymity and uninhibited criticism, challenges the capacity of reviewers to maximize the ability of peer review to evaluate and improve the quality of care that patients receive. Seeking a solution to this problem through legislation and election will be a long tedious process that must not be abandoned. In the meantime, numerous adjustments are available to protect the peer review system. The vulnerabiity of privilege for peer review information in civil courts, albeit for the worthy purpose of accountability, is repugnant to most health care providers, but it need not and must not deter physicians in their efforts to improve the quality of health care through peer review.

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Dr. Griffen, Chair of the ACS Board of Governors' Professional Liability Committee, is clinical professor of surgery, Louisiana State University Medical Center, Shreveport, LA.

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This article on professional liability was generated through the efforts of the Committee on Professional Liability of the ACS Board of Regents. Members of the committee believe that this and other articles published in the Bulletin should stimulate thought and possible action on a wider spectrum of issues related to professional liability.

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References

1. Griffen FD, Adelman SH: ERISA and medical professional liability. Bull Am Coll Surg, 83(7):16-21, 1998.

2. Graham J: States physician profile databases fought by medical societies. The Health Care News Server [serial online], May 15, 1997. Available from Business Word Inc., Englewood, CO.

3. Beck E: JCAHO revises sentinel event reporting policy. The Health Care News Server [serial online], April 30, 1998. Available from Business Word Inc., Englewood, CO.

4. Request for Proposals for Research in Patient Safety, National Patient Safety Foundation at the AMA, Chicago, IL, Dec. 1997.

5. Cronan CJ IV: The latest word on confidentiality of peer review. J Kentucky Med Assn, 96(12), 491-493, Dec. 1998.

6. Laizure AM: The "peer review" privilege. The Advocate (Oklahoma St Med Soc), Third Quarter:8-13, 1998.

7. Ross K, McArthur MS: Reduction of medical liability claim frequency: The Texas experience. Bull Am Coll Surg, 83(1):26-30, 1998.

8. Slaughter J, Wilson D: Summary of Peer Review Requirements After Adams. Topeka, KS: Kansas State Medical Society: April, 1998.

9. Brown JD, Roach WH Jr: Topics in Health Information Management. Aspen Publishers Inc, 14(4):68-73, May, 1994.

10. Brown CL, Paine SJ: Peer Review Confidentiality: It's Not Just Important, It's Critical. Foley & Lardner/Practice Groups, 17(2), March/April, 1993.

Bulletin of the American College of Surgeons
Vol.84, No.5, May 1999

Professional Liability

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