A 2015 decision by the West Virginia Supreme Court of Appeals highlights the importance of following procedural formalities by making it clear that a failure to apply and maintain clear distinctions in what health care providers intend to classify as “peer review,” both before and during the actual activity, may compromise the privilege.

In State ex rel Manor Care v. Stucky, the state’s highest court considered a long term care facility’s claim that certain consulting reports labeled “Center Visit Summaries” were protected from discovery as confidential peer review materials. Observing that the burden is upon the health care provider to prove that the privilege applies, the court concluded that the provider had failed to meet that burden with proof that the materials in question were actually prepared for and submitted to a peer review organization.

Accordingly, preserving the privilege must be considered long before there is a request for the materials, and even before there is an actual peer review matter.  The program must be organized and operated in a fashion that demonstrates the initial and ongoing purpose of “peer review.”  That includes:

1. Bylaws, rules and regulations, and policies consistent with mandating or enabling law;

2. Documented description, composition, and operation of the peer review committee or entity in accordance with the defined purpose; and

3. Vigilance against use, reference, or other disclosure of the materials outside the peer review process, which might compromise their distinction or even arguably waive the privilege.

Now is the time to take a critically objective look at your program, and decide whether it needs a tune up. For example, review and updating of the medical staff bylaws, process review and administrative training are all good investments in the integrity of the program.