Are your physician performance reviews confidential or are they in danger of being discovered during litigation?
A recent decision by the Pennsylvania Supreme Court suggests that the answer may depend on a number of different factors, including the employment status of the person being evaluated, the entity conducting the evaluation, and the purpose of the assessment being conducted.
Value-Based Purchasing
Value-based purchasing and pay for performance programs are increasingly popular. Medicare and Medicaid and many private insurers have implemented programs that reimburse hospitals based on quality of treatment—including, for example, patient reviews of their care. As healthcare systems have become more outcome oriented, information about specific physician performance, particularly when collected through methods including peer evaluation may have unintended consequences.
When physicians participate in these peer review programs, they may assume that the information provided within these reviews will be kept confidential in the event of a lawsuit. They may even believe that this information is protected by the “peer review privilege.”
Peer Review Privilege
The peer review privilege was created to foster candid discussion about medical care with an overall goal of improving healthcare. A quality peer review program requires that parties are able to openly discuss issues without fearing that the information will be made public. The documents that are the product of these programs often include frank assessments about what was done right and wrong in medical care. The peer review privilege was intended to alleviate worry about the potential liability and negative consequences that evaluating colleagues may create.
Indeed, each of the 50 states has enacted some form of medical peer review statute, which offer varying degrees of protection to the documents that are used by a peer review committee. Similarly, the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA) provides a peer review privilege when claims are subject to federal jurisdiction.
The scope of what is protected by the peer review privilege varies considerably from state to state. Some states have narrow statutes that limit the protected information to the peer review committee’s formal proceedings and internal records. These jurisdictions do not want information to be able transformed into protected information because it is reported at a later point in time.
Other states interpret the privilege statutes more broadly, including incident reports within the scope of the privilege. These jurisdictions reason that candid incident reports are necessary to the development of the patient safety goals of the peer review process.
Limitations on Peer Review Privilege
In a recent decision by the Pennsylvania Supreme Court, Reginelli v. Boggs, the justices ruled 4-3 that peer review documents are covered under the Peer Review Protection Act (only if they are generated by organizations that are regulated by the state to operate in the healthcare industry. The Pennsylvania peer review privilege, Peer Review Protection Act, 63 P.S. §§ 425.1-425.4 (“PRPA”), protects the “proceedings and documents of a review committee” conducting peer review activities by professional health care providers in conformity with its provisions.
The court had a opportunity to review this privilege when a hospital and a staffing company claimed that the peer review evidentiary privilege prevented the disclosure of the performance file of Marcellus Boggs, M.D. Dr. Boggs was an employee of Emergency Resource Management, Inc. (ERMI) but worked in the Monongahela Valley Hospital (MVH) emergency room. Dr. Boggs’ performance file was prepared and maintained by his supervisor Brenda Walther, M.D., the director of MVH’s emergency department. Dr. Walther was also an employee of ERMI.
In 2011, Eleanor Reginelli was brought into MVH’s emergency room for reported gastric discomfort and was treated by Dr. Boggs. Days after being discharged, Reginelli suffered a heart attack. Reginelli and her husband filed a lawsuit against Dr. Boggs, MVH, and ERMI, alleging that Dr. Boggs was negligent in his treatment, that MVH was liable for corporate negligence, and MVH and ERMI were vicariously liable for the actions of their agents or employees.
The Reginellis filed a motion to compel the discovery of Dr. Boggs’ performance file. MVH argued that the performance file was protected under the PRPA because it was created to review the services provided in their emergency room. The trial court ruled that the file was not covered by the PRPA and granted the Reginelli’s motion to compel.
