CALIFORNIA PEER REVIEW PRIVILEGE LAWS “Is it Safe?”

Though the three-word inquiry, “Is it safe?”, played a far more chilling and dramatic role in the 1976 movie, Marathon Man (think of, the sound of a whirling dentist’s drill, the instrument guided slowly towards the lower molar of a restrained Dustin Hoffman), the answer nevertheless has far-reaching, albeit less titillating implications when speaking of California peer review privilege laws.

State peer review privilege laws are premised on a critical public interest; encouraging physicians to conduct and participate in the peer review process without fear that their frank and objective evaluation of a colleague, most often elicited through a medical committee created to carry out such tasks, will be subject to discovery (and in turn expose the participant to the risk of personal liability). Indeed, without such afforded protection, few physicians would be willing to participate in the peer review process, which is designed to provide medical staffs with legal grounds upon which to initiate any corrective action deemed necessary and appropriate against a physician member of its staff.

In California, Evidence Code §1157 is perhaps cited most often in civil discovery disputes surrounding the peer review privilege. Subdivision (a) of that section prohibits the discovery of records and proceedings of organized committees of hospital medical staffs responsible for evaluating and improving the quality of care rendered. Yet as is the case with countless statutes and regulations, the interpretation of the precise meaning of the law is often subject to lively debate. From a civil litigation standpoint, for example, the chances of a plaintiff prevailing in a medical malpractice case might be greatly enhanced if his counsel was able to acquire notes from a peer review committee hearing criticizing the care provided by the defendant, physician.

With that premise in mind, it is noteworthy that recent court rulings across several jurisdictions have produced differing and even conflicting interpretations of the privilege doctrine, thus raising the question: how iron-clad is the privilege doctrine in the peer review setting?

The Supreme Court of Michigan has accepted to hear a decision of the Michigan Court of Appeals concerning a professional malpractice action involving documents containing factual observations contemporaneous to the events involved. In that case (Harrison v. Healthcare, Inc.), defendant, hospital claimed in discovery and again at trial that no one in the operating room recalled how plaintiff, patient’s arm was burned during a thyroid surgical procedure, and concluded that it must have been an ‘accident.’ However, a contemporaneous incident report, which the hospital claimed was peer review protected, i.e., privileged, stated that the “Bovie” cauterizing device was “laid on” the surgical drape during surgery and the surgeon leaned against the patient at the device site.

Most notably, the Michigan Court of Appeals held that the incident report was only partially protected as a privileged peer review document. The cover page of the report, containing an operating room staffer’s contemporaneous observations, was deemed not privileged and thus discoverable, though the remainder of the report was privileged, as it was reflective of a deliberate review process. The court also upheld sanctions against defendant hospital and its counsel, emphasizing that a court ruling that a portion of a report was privileged does not give the hospital the right to build a defense inconsistent with known but non-disclosed facts.

A recent Illinois case also involved the interpretation of that state’s peer review privilege statute. In a malpractice and corporate negligence suit arising out of a gallbladder surgery with resulting complications, the appellate court held that the trial court did not abuse its discretion in permitting discovery of the surgeon’s applications for privileges. Though an external peer review report by a consultant’s report was to be redacted as peer review and hence privileged, the court ordered that the portion of the surgeon’s application containing reports filed with the National Practitioner Data Bank regarding the surgeon was discoverable. And, the court further declined to extend the physician privilege to the surgeon’s own assessment of his personal medical condition outlined in his applications. Finally, the court affirmed the trial court’s order that the surgeon’s procedure summaries be provided, reasoning that they contained raw data rather than peer evaluations.

Courts among the many jurisdictions throughout the country will likely continue to interpret state peer review privilege statutes. Though it is tempting to rationalize these out-of-state rulings as inapplicable to California, one must be cautious in assuming that one state’s judiciary is not influenced in its reasoning by the rulings in other states. The Harrison case opinion cited above, for example, while venued in Michigan, discusses court decisions interpreting the peer review privilege under several other states’ statutes, among them, Colorado, Nevada, Connecticut, and Washington, in support of its rationale that factual statements within incident reports are discoverable.

Though the California Court of Appeals set a legal precedence upholding the strict application of Evidence Code §1157 in the case of Matchett v. Superior Court, the reader is reminded that this seminal state case was reported in 1974, some forty years ago. At that time, the Matchett court noted that its review was notable inasmuch as Evidence Code §1157 had not been construed in any prior, reported decision. Though since the Matchett opinion, other California courts have cited and relied upon it in its analysis, it would be short sighted to conclude that looking forward, a California court will not choose to interpret and therefore apply Evidence Code §1176 in a more liberal and expanded fashion, and in doing so, create a chilling effect such as to prompt hospitals and in particular, medical staffs to think about modifying the manner in which they assemble and structure peer review committees and the very content of their peer review reports. In light of that possibility, a hospital or medical staff not seriously seeking to modify its procedures so as to prevent the recordation of damning information will face an even greater dilemma; finding physicians willing to participate in the peer review process, and if they choose to, expecting the participant to provide an open and frank assessment.

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