By Robert P. Powers, Esq., a member of the law firm Melick & Porter, LLP. He argued the Carr appeal before the Massachusetts Supreme Judicial Court.
Medical care providers in Massachusetts who maintain an organized system of peer review should feel more secure about the confidentiality of their proceedings following the Commonwealth's Supreme Judicial Court decision last spring in the case of Carr v. Howard.1 The Carr opinion is of great significance because it addresses at length the protections afforded to peer review pursuant to Massachusetts law.2 The opinion provides guidance for medical care providers concerned about maintaining the fullest possible measure of confidentiality for their peer review process, as well as for providers faced with a plaintiff's request for protected material.
The Carr case arose from the death of Stanley Howard, who broke away from an escort and jumped from the roof of a hospital parking garage, landing on John Carr. Carr sued Howard's estate, which in turn, sued New England Deaconess Hospital.3
Carr sought records from the hospital relevant to Howard's treatment, including any incident reports. The Deaconess agreed to produce a security guard's report, but reports created by a nurse manager, an emergency department nurse, and the department of psychiatry were withheld as privileged peer review materials.
Carr asked a Superior Court judge to require the hospital to disclose the documents. The judge asked the Deaconess to provide the documents for his personal review so that he could determine whether the peer review privilege applied. The Deaconess refused. It argued that even this would improperly breach confidentiality.
The displeased judge declared that the hospital's "bold" decision to withhold the documents was not "beyond review by an independent judiciary." He ordered the hospital to comply with his request. The Deaconess sought appellate relief from his order and threat of sanctions. It successfully persuaded the Massachusetts Supreme Judicial Court (SJC) to review the propriety of the order.
The SJC recognized that the medical profession has historically regulated itself through internal peer review, and that the Massachusetts Legislature intended to bolster peer review by enacting the various statutory provisions now contained in Chapter 111.
These provisions require, as a condition of licensure, that hospitals participate in risk management programs to review past performance and prevent future harm to patients. To promote candor and confidentiality in the review process, the Legislature created strong protections against discovery and use of peer review materials in civil malpractice actions.
The statute states plainly:
"the proceedings, reports and records of a medical peer review committee shall be confidential and shall not be subject to subpoena or discovery."
The SJC, in Carr, ruled that plaintiffs "must not be permitted to disregard the policies embedded" in this statutory prohibition.The SJC agreed with the Deaconess that determining whether a document is protected by the peer review privilege requires examination of its purpose and the process by which it was created, not its content.
The SJC directed trial judges to first examine a discovery request to determine whether on its face it seeks information clearly within the scope of peer review. If doubt exists, the SJC said, trial judges should next consider the evidence proffered by the medical care provider.
The SJC stated that a party seeking to protect peer review materials must produce evidence tending to show:
The SJC concluded that a provider need not show that a particular record was submitted to and used by a specific peer review committee, only that the record at issue is of a type that is generally used by peer review committees.
Not withstanding the broad discretion granted to trial courts on issues of discovery and evidence, the SJC stated that judges are not at liberty to substitute their judgment for that of the Legislature, and that any order that violates the confidentiality granted by the peer review statute would be an abuse of discretion.
Reviewing the materials and affidavits which the hospital had provided to the judge below, the Supreme Judicial Court concluded that the Deaconess had successfully shown that the incident reports were protected peer review materials. This was sufficient to sustain its burden. The Court therefore vacated the trial court's order.
Perhaps the most significant point to observe about the Carr decision is how important the existence of a formal peer review program was to its outcome.
As exemplified by the lower court's order, judges tend to view the discovery process as a means of uncovering the "truth," and will favor the legal principle that the public has a right to every person's evidence.
Claims of privilege will often be met with skepticism because of the broad legal concept of "relevance" which leads judges to favor the admissibility of any matter that might bear on any issue in a given case. To overcome this inclination, medical care providers must be able to demonstrate for the court that a formal peer review program exists and be able to explain the process.
Review of the Carr opinion will afford health care providers and risk managers a clearer understanding of the types of supporting materials that are necessary to sustain a claim of peer review privilege in Massachusetts.
These may be grouped into two categories:
Second, affidavits from knowledgeable individuals within the institution should be obtained. These should include affidavits from medical staff personnel involved in the peer review process, but may also include individuals from the general counsel's office or department of risk management.
An affidavit from the chief of the department from which the peer review document is sought is very effective. Such individuals are highly sensitive to the importance of maintaining confidentiality in the peer review process.
Their sensitivity to this issue can result in an exceptionally persuasive and forceful affidavit. Keep in mind that the judge to whom the materials are submitted will not have anywhere near the familiarity with peer review as will the chief of a department.
Affidavits are key to providing education and understanding.Affidavits should track the language of the statutory requirements. They should demonstrate the purpose for the materials and the process by which they were created or used. They should contain strong language detailing the importance of peer review to the institution and the impact disclosure will have on the effectiveness of peer review.
Affidavits stating that the subject materials generally are necessary to comply with regulations of the Board of Registration in Medicine are acceptable. However, affidavits that specifically attest to this are preferable.
Affidavits need not specifically show that the documents were submitted or used by a particular peer review committee within the institution. They need only to show that information sought to be protected is necessary to the peer review committee's work product generally.
However, when the specific document in question has been submitted to and/or used by a peer review committee, include this information in the affidavit since it bolsters the argument in favor of confidentiality.
Peer review is absolutely critical to the teaching and advancement of medicine. In the provisions of Chapter 111, the Massachusetts Legislature sought to advance the important purpose of aggressive peer review in the Commonwealth's hospitals, health maintenance organizations, and nursing homes.
Although prior case law explained the strong public policy which underlies the need for protecting the confidentiality of peer review, these decisions provided little guidance to medical care providers and trial courts on how the peer review privilege should be established.
The Carr decision fills this gap. Carr provides health care providers with guidelines on how to protect from disclosure in malpractice cases the deliberations of peer review committees, their work product, and the materials upon which that work product is based. It will be of great help in preserving the confidentiality which is essential to maintaining peer review as a critical tool in the delivery of health care.
