In Carr v. Deaconess Hospital, the Massachusetts Supreme Judicial Court recently expanded the type of documents that are protected from discovery by the peer review statute. The decision also sets forth new direction in how litigants and trial courts are to interpret the application of this statute.

    In Carr, Stanley Howard, a psychiatric patient at New England Deaconess Hospital, broke away from an escort who was transporting him and jumped to his death from the fifth floor of the hospital. In doing so, Howard landed on John Carr, who sued the hospital, alleging that they were negligent in their care, treatment and supervision of Howard.

    Carr asked the Deaconess to produce all medical records relating to Howard's care, including any incident reports documenting Howard's suicide. The Deaconess refused to produce the incident report, claiming it was protected under the peer review statute.

    The trial judge ordered the hospital to produce the incident report so that the judge could review the documents in camera. This means that the judge would not allow anyone else to see the documents until he had reviewed them and decided if they should be prohibited from discovery. The Deaconess refused to produce the documents even for in camera review, asserting that such a review would negatively affect the functioning of the medical peer review process at the Deaconess. The Deaconess also submitted Affidavits to support its contention that these documents were, in fact, part of the peer review process defined by the Board of Registration in Medicine regulations. The Deaconess pursued the matter to the Massachusetts Appeals Court, and then sought further appellate review with the Massachusetts Supreme Judicial Court.

    That court reviewed the legislative history of the enactment of the privilege. The Court stated that to show the evidence was confidential, the hospital needed to show that the information and records were necessary to comply with risk management and quality assurance programs required by the Board of Registration in Medicine, or that the information and records were necessary to the work product of a medical peer review committee. The Supreme Court also held that in order to show that the incident report was "necessary," the Deaconess was not required to show that a peer review committee actually utilized the report. Rather, the Court stated, it was sufficient for the Deaconess to show that the incident reports were a core component of peer review, began the peer review process, and were necessary to a committee's work.

    Under this ruling, a hospital need only show that the information at issue is of a type that is generally used by such committees. Noting that Board of Registration in Medicine Regulations required the Deaconess to report major incidents on a quarterly basis, the Court concluded that the records in question were the type of records that would be protected from discovery.

    The court moved on to consider the second issue of whether or not the trial court's in camera review of these documents was prohibited by the statute. The court noted that the Deaconess was obligated to show that the documents, as created, were in fact privileged. The court found that the Deaconess had properly substantiated that the incident reports in question were protected by the statute, by submitting four affidavits stating that incident reports were necessary to comply with the Massachusetts Board of Registration in Medicine's regulations. Further, the Court noted that even though these documents were never actually submitted to a peer review committee, and a peer review committee never actually convened, these documents were still part of the peer review process. So the Court concluded that neither an in camera review, nor the disclosure of the documents, would have been appropriate in this case.

    This important decision is in harmony with decisions from courts around the country that have considered this issue. The trend throughout the United States is to have statutes protecting the confidentiality of peer review documents, and enforcing the protection.

    To protect documents from discovery, hospitals are advised to develop strict policies complying with the requirements of the Board of Registration in Medicine. The process of the creation of these documents, and when these documents must be created should be clearly set forth in the hospital guidelines. If the applicability of peer review protection is placed under microscopic review by a court, sufficient safeguards will have been met. In this way, individuals will be more willing to participate in a candid and frank discussion of the patient care activities that are taking place in these facilities. At the same time, the health care profession will be better able to police its own members and to save society from practitioners who are practicing in substandard or unsafe ways.

    Confidential Peer Review Documents

    by Attorney Frank E. Reardon

    March 1998

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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