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When granting physicians privileges, hospitals have an ongoing obligation to appraise the professional work of their physicians.  As part of this process, hospitals are required to investigate complaints made about a physician.  When investigating these complaints, hospitals sometimes retain physicians from outside hospitals to critique the care at issue.  In fact, sometimes physicians are retained from out of state.  Although consulting physicians are participating in the peer review process, they do not necessarily become members of a hospital’s peer review committee.  If a physician loses their hospital privileges and litigation ensues, the scope of the peer review privilege becomes an important issue in the case. 

            In Grande v. Lahey Clinic, the Appeals Court of Massachusetts considered whether a plaintiff physician who sued the defendant hospital for defamation could depose a physician who was retained as an out-of-state consultant of the defendant hospital’s peer review committee.  In October 1994, Lahey Clinic employed a dermatologist who specialized in performing Mohs surgery, as Chairman of the Department of Dermatology.  Mohs surgery is utilized to treat skin cancer by removing one microscopic layer of the skin at a time. 

            In March of 1995, two physicians at Lahey wrote memorandums to the Lahey Tissue Committee criticizing the manner in which the dermatologist cared for nine of his surgical patients.  Pursuant to the Lahey Clinic By-Laws, these complaints were referred to the Lahey peer review committee for investigation.  Since there were no other physicians specializing in Mohs surgery on staff at Lahey, the peer review committee retained a physician who practiced in Pennsylvania to consult with the committee. 

            As part of the consultation, the physician from Pennsylvania spoke with physicians at Lahey and reviewed the charts of the patients whose care was at issue.  After performing this investigation, the Pennsylvania physician submitted her report to

the peer review committee.  The peer review committee ultimately found that the dermatologist’s care and treatment was up to the standards of his specialty. 

            Since the dermatologist believed that the memorandums critical of his care and treatment were written in bad faith as part of a turf war with other skin cancer surgeons, he resigned from Lahey and filed a defamation lawsuit against the Lahey Clinic and the two physicians who criticized him.  During the course of discovery, the dermatologist’s counsel sought to depose the physician from Pennsylvania who was consulted by the peer review committee to determine whether she had any knowledge of a professional rivalry by the physicians who wrote the memorandums which triggered the peer review.  The Lahey Clinic moved for a protective order on the grounds that all information which the Pennsylvania physician learned about the case was protected by the peer review privilege. 

            The trial court judge found that although the report of the Pennsylvania physician was privileged, her oral testimony was not.  The Judge’s decision was based upon the fact that the Pennsylvania physician was neither a member of the peer review committee nor in attendance for any of the committee meetings.  Lahey Clinic then filed an interlocutory appeal. 

            The Appeals Court overturned the trial judge’s decision and held that the peer review privilege applied.  In reaching its decision, the Appeals Court first considered the purpose of the peer review privilege, which is to promote the uninhibited investigation and expression of opinion in peer review proceedings.  Although the Pennsylvania physician did not attend the peer review committee meetings, her activities were considered the necessary work product of the medical peer review committee.  The Appeals Court also pointed out that if hospitals would be discouraged from bringing in outside medical experts to assist in peer review, if their consultant efforts “stripped away the confidentiality of their consultative work and thereby of the peer review proceedings.”  The Court concluded that there was “little point to providing that a report to a peer review committee will be confidential if the investigative work of the author of the report [wa]s not.”  

Peer Review Committee Protected from Deposition

by Attorney Frank E. Reardon

June 2000

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

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