Confidentiality in the Peer Review Process: What Does it Mean and What is Covered? Part I

Depending on one’s standpoint and experience, the peer review process can bring about mixed feelings in healthcare providers. Opinions about the effectiveness of the process, those who sit on the panel and the outcome are often debated. However, what is often less debated until long after the process has taken place is whether the information reviewed during the peer review process is subject to discovery in other settings.

Generally, the peer review process is a retrospective review of an event or series of events conducted in an effort to improve quality of care. In order to encourage candid review, many states have enacted laws to limit the discoverability of the proceedings, the records reviewed and the records created during the peer review process. In other words, in a civil proceeding, the contents of the peer review meetings and the records discussed are not discoverable and are not subject to a subpoena and the participants in the meetings are not required (or, in many cases, permitted) to testify to or disclose the matters discussed by the committee or its decision. However, in light of these legal protections, many lawyers representing plaintiffs in malpractice cases seek to poke holes in the protection to obtain evidence to support their case against physicians. This unfortunate fact jeopardizes and compromises the effectiveness of the process.

In light of the litigious environment within which all physicians practice, it behooves all anesthesiologists and pain specialists to consider the following:

1. Familiarize yourself with the peer review process within your organization and the facilities in which you practice to ensure that retrospective reviews are protected by the privilege. 
2. It is especially important to consider how to initiate the peer review process to ensure initial inquiries are protected.
3. Work with the administration/ risk management in your group or the facilities in which you practice to improve upon the peer review process.
4. Ensure any conversations or notations about the peer review committee’s review of an issue remain within the confines of the peer review process. In other words, casual conversations with colleagues or notations in a patient’s record regarding the review may be subject to discovery.
5. Familiarize yourself with the types of records that are protected under the privilege in the state in which you practice.

On the next 3 pages, you will find Part I (Alabama through Iowa) of a brief summary of what is protected by the peer review privilege in every state. Please note that the table is meant to be strictly informational and would require a more detailed review of the state’s judicial interpretation of its statutes. A summary of the remaining states (Kansas through Wyoming) will appear in the next issue of The Communiqué.