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Your peer review file
Every healthcare organization that utilizes a credentialing process to qualify providers maintains a “peer-review” file for each provider. Typically, this file contains the data maintained by the National Practitioner Data Bank (NPDB). This data reveals adverse licensure actions and settlements and adverse judgments in professional liability cases, among other information.
Federal law
The NPDB provider profiles are the direct result of the Healthcare Quality Improvement Act. This Act was an attempt on the federal level to improve the overall quality of healthcare by making information available to healthcare organizations that will help in the due diligence required during the credentialing process. The data stored by the NPDB is not available to the general public and the information sent by the NPDB to your peer review file is considered confidential and is privileged from use in litigation by federal law.
State law
However, the federal privilege is limited and protects only material generated by the NPDB. The other documents that may be contained in a credentialing file, such as applications, recommendations and reference letters are entitled to a peer review privilege under the law in most states, like the Pennsylvania Peer Review Protection Act. The legislature recognized that there are benefits to allowing organizations to openly document errors and actions in privacy in order to take corrective action to improve the quality of the services that are provided. If such frank discussions could be used as evidence of negligence in lawsuits, there is a concern that discussions would be more guarded and organizations would react more slowly to making quality improvements.
However, the peer review privilege has been interpreted inconsistently by the courts. For example, the Pennsylvania Supreme Court has ruled that the Peer Review Act does not apply to protect from disclosure information maintained in a health maintenance organization file. A distinction has been made between factual information which is discoverable and deliberative information which is not discoverable. The Act may not protect incident reports that are submitted to and considered by Peer Review Committees if they are not created by the Peer Review Committee itself. The Peer Review privilege will not apply when the underlying suit relates to a physician’s own challenge of medical staffing decisions.
Recent case
In a 2005 case entitled Troescher v. Grody, the Pennsylvania Superior Court decided that even correspondence and recommendations prepared by Temple University Hospital’s general counsel were covered by the Peer Review Act and were not available for use in a medical malpractice case. The majority opinion emphasized the policy goal of protecting the hospital’s ability to freely regulate and improve the conduct of the staff physicians. The dissenting opinion, however, stated that healthcare providers accused of negligent supervision should not be able to shield themselves from liability by using the Peer Review Act. The dissenting judge would have allowed the plaintiff to access the creden- tialing file of physicians to support the claim of corporate negligence.
MCARE Act
There is a new statutory source that physicians can attempt to use to broaden the peer review privilege. The Pennsylvania Medical Care Availability and Reduction of Error Act (MCARE) contains provisions that provide privilege protection for information generated in the “patient safety review process.” The language of the Act has not yet been analyzed by any appellate court considering the peer review privilege issue, but it arguably provides an additional protection for documents, materials and information prepared for patient safety reasons.
Practical advice
Practitioners should maintain all peer review type documents that are created with an appropriate legend to maximize the chance that the court reviewing this information will draw the conclusion that the documents are entitled to the privilege. If the papers can be linked to improving patient safety this theme can help expand the privilege. Counsel representing such providers should use federal and state law references to increase the scope of the peer review privilege.
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2006 Kalogredis, Sansweet, Dearden and Burke, Ltd.
