The recent decision of the Supreme Court of Appeals of West Virginia in West Virginia ex rel. Wheeling Hospital, Inc. v. Wilson clarifies the reach of the peer review privilege. The Court reiterated several well-established points as to the application of the privilege and announced at least two points of guidance.

First, to determine whether the peer review privilege applies, a court must consider both origin and use of the document. Documents created or used exclusively by or for a review organization as part of the peer review process are privileged. “However, documents that either (1) are not created exclusively by or for a review organization, (2) originate outside the peer review process, or (3) are used outside the peer review process are not privileged.”

This holding is a clearer statement on waiver than existed before - and specifically identifies use outside of the peer review process as waiving the privilege.

Second, the Court held that, where documents and information from outside the peer review process are considered, that material can be obtained, but only “from the original source, itself, [and] not from the review organization that has used it in its deliberations.”  Prior to this decision, Plaintiffs have sometimes sought, and been granted, discovery of “non-privileged material” collected by the peer review process, using the peer review committees as involuntary investigators.  This holding should block that approach.