Protect you peer review documents from discovery
Work-product privilege is a type of peer review protection law that prevents information associated with the peer review process from being discovered in court. This protection is based on the idea that physicians won’t candidly discuss a colleague’s shortcomings if their statements later could be discovered in judicial proceedings. All of the states, as well as the District of Columbia, recognize some form of privilege that protects various records and documents created as part of the peer review process. The Health Care Quality Improvement Act of 1986 does not protect peer review documents from federal discovery.
State laws differ on which documents they protect. For example, some states protect “the reports, statements, memoranda, proceedings, findings, and other records of peer review committees or officers” but don’t protect records given to the committee. Another state law allows discovery of materials produced out of sight of the peer review process. At the other end of the continuum are states that protect all information considered by the entity acting in a quality assurance process and that treat the records of such consideration as confidential.
In many states, the courts or the legislature have carved out areas in which the confidentiality provisions do not apply. It is not uncommon, for example, to find exceptions to the confidentiality provisions when a physician challenges his or her own peer review process.
In 2005, the federal government passed legislation to allow protection of information from discovery of documents and data related to quality improvement entitled the Patient Safety and Quality Improvement Act, which went into effect in 2009. This legislation allowed healthcare organizations to form or participate in patient safety organizations (PSO). The PSO goal is to promote the aggregation and sharing of quality information to improve patient care without fear of its use in legal proceedings. While it is beyond the scope of this book to fully explore the details of the PSO, the potential impact on peer review is worthy of discussion.
The key protection participating in a PSO offers for peer review is that one can designate documents other than patient records (e.g., case review findings, letters of inquiry) as patient safety work products (PSWP). PSWP documents receive federal protection from discoverability rather than the state protection discussed earlier. Thus, the PSWP approach is particularly helpful in states where peer review protection has been weakened either by statute (e.g., Florida Amendment 7) or case law (e.g., Kentucky).
Source: Effective Peer Review