Discovery & the Medical Peer Review Privilege

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In Massachusetts, strong public policy mandates the highest quality of care in our health care facilities and the prompt discipline of errant physicians. That public policy is represented in a strict regulatory scheme covering virtually all aspects of hospital operations. Integral to this scheme is “an effective process for self-scrutiny, manifest most prominently in the medical peer review process.” To “promote candor” and “foster aggressive critiquing of medical care by the provider’s peers”. Massachusetts, by statute, affords internal medical peer review proceedings the protection of confidentiality. As such, “the proceedings, reports and records of a medical peer review committee” are not subject to discovery in a civil case. However, much information and many documents used in peer review are also essential for the investigation and prosecution of medical malpractice claims leading to repeated conflicts between the peer review privilege and access to discovery.

Civil Discovery in a Malpractice Case

In one recent medical malpractice case, the Superior Court grappled with this conflict in connection with a plaintiff’s deposition inquiry into a hospital’s internal protocols, and whether such protocols were followed in the case. In Massachusetts, the rules of civil discovery require a corporation or other entity to designate a knowledgeable witness to testify by deposition on matters “known or reasonably available” to it. In accordance with the rule, the notice of the deposition in this case stated with particularity the matters that would be subject to examination. In response, the hospital filed a motion for a protective order arguing that compliance would be tantamount to being required to provide expert testimony and would violate the peer review privilege.

In denying the hospital’s motion, the trial court judge stated that the deposition would not compel a witness to offer expert testimony about whether the hospital’s employees were negligent, but rather would concern the hospital’s internal practices and protocols when the plaintiffs received treatment and whether those internal rules were followed, or not followed. The judge found that the hospital was raising “premature objections” and that a “fair and open discovery process” mandated that the hospital produce a witness for the deposition, but also allowed the hospital to object to questions during the course of the deposition that would divulge specifically defined information protected by the privilege. The judge noted that business “organizations in science and industry routinely designate witnesses to testify whether they complied with their respective rules, regulations, customs, policies, practices, guidelines, and procedures” and that the hospital had not demonstrated an entitlement to preferential treatment. The judge concluded that unless the plaintiffs were able to question the witness on the requested topics, the information would only be known to the hospital and would stifle the full and fair inquiry discovery is intended to provide. Following the ruling, the hospital appealed to the single justice of the Appeals Court who upheld the Superior Court order.

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