Hospitals and physicians around the country rely on Federal, state, and local “peer review” statutes and regulations to protect records of peer review investigations from public disclosure. Such introspective, candid documents assessing what was done right and wrong during an operation or other procedure are essential to patient health and safety, and institutional quality control.  Encouraging such self-assessments is the basis for peer review laws.

For example, the Federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) protects from disclosure, under certain circumstances, “patient safety work product” such as records and statements used to develop and improve patient safety, health care quality, and healthcare outcomes. 42 U.S.C. 299b-21, et seq. Likewise, the Commonwealth of Virginia Code includes privilege protections for certain “patient safety data” including communications from medical staff and utilization committees, such as peer review and quality of care committees. See Virginia Code Section 8.01-581.16-17.

So why did we recently see the headline, “Peer Review Privilege Waived Over Discovery”?  Virginia Lawyers Weekly, April 30, 2018. In that medical malpractice case in which the patient died following a cardiac catherization, the defendant hospital refused to produce alleged peer review documents including, for example, a “root cause analysis” (RCA).  Creasy v. Medical Assocs. of Southwest Virginia, Inc., et al. (Montgomery County, Va. Circuit Court Case No. CL17-1582, 28 Va. Cir. LEXUS 56 (April 16, 2018)).

The hospital included references to the documents in its privilege log, with such explanations as the RCA “was prepared for purposes of improvement of patient safety and quality of care.” The log also identified a hospital peer review report and handwritten notes collected in the weeks following the patient’s death, prepared to “improve patient safety and quality of care.”

At the hearing on the motion to compel, hospital counsel argued that the Federal PSQIA and Virginia statute protected the documents from disclosure. The plaintiff’s attorney argued that:

• The hospital failed to provide an adequate description of the withheld materials to justify the claimed privilege (according to the trial judge, “You didn’t describe one single solitary document that you’re claiming the privilege to now, did you?”).
• The hospital’s attorney had not seen the documents.
• The hospital waived any privilege asserted under the statutes.

In ruling for the plaintiff and ordering production, the court held that the hospital had waived any privilege under the Federal PSQIA and state statute by failing to provide an adequately descriptive privilege log including evidence to support the claimed privilege. Additionally, the court stated that hospital counsel “have acted in bad faith by failing to comply with the Rules of the Supreme Court of Virginia. Further, they have signed discovery responses claiming certain documents are privileged without reviewing the documents.”

With respect to sanctions, the judge stated that he had considered a default against the hospital on liability—meaning a trial on damages only—but decided instead to order production of the documents, and invited a motion for attorney’s fees and expenses incurred with respect to the withheld discovery.

Following receipt of the documents, the plaintiff’s attorney stated that, “We found a large number of very important facts that were not set forth anywhere in [decedent’s] medical records,” some of which were “incredibly damaging to the hospital from a liability standpoint.” Given the candor characterizing many peer review investigative reports, this is not surprising.

Takeaway: While this case might ultimately be appealed and overturned, it is a salutary reminder of the risks inherent in peer review document systems. Healthcare counsel—advisors and trial lawyers—should be fully informed of all potential “peer review” or “self-assessment” privileges in their jurisdiction, and take all necessary steps to preserve the privilege and protect the documents from disclosure. As one Federal judge has said, “protect privileged documents like the crown jewels.” Ensure that you follow all requirements for withholding such files from production, including meeting all of the stipulations of a conforming privilege log. And, make sure you have reviewed all documents claimed to be privileged. Do not be on the losing end of a motion to compel.

Summer Clerk Laurence Thompson, in our Washington, D.C. Region office, contributed to this post. John Bryson II contributed to the post.