The Limits of the Peer Review Privilege

February 9, 2014

Harrison v. Munson Healthcare, Inc., — N.W.2d —, 2014 WL 340895 (Mich.App. 2014)

This decision of the Michigan Court of Appeals demarcates the limits of the peer review privilege under Michigan law. The decision is also important in that it carries out a cross-jurisdictional comparison between peer review privileges and their judicial interpretation.

Michigan’s peer review statute requires hospitals to “assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital. …. The records, data, and knowledge collected for or by individuals or committees assigned a review function …. are confidential and …. shall not be public records, and shall not be available for court subpoena.” MCL 333.21513(d), 333.21515.

The Court interpreted this statutory provision as distinguishing between factual information reporting contemporaneous observations or findings, and “records, data, and knowledge” gathered to permit an effective review of professional practices. This interpretation separated facts concerning a patient’s care, and in particular facts incorporated within incident reports, that the patient is entitled to receive—and that are consequently unprivileged—and a confidential deliberative review process. The Court explained that “it is not the facts themselves that are at the heart of the peer review process. Rather, it is what is done with those facts that is essential to the internal review process, i.e., a candid assessment of what those facts indicate, and the best way to improve the situation represented by those facts.”

The peer review privilege, the Court clarified, “may not be used as a shield to obstruct proper discovery of information generated outside review committee meetings. The [privilege] does not grant an immunity to information otherwise available from original sources. For example, any information from original sources would not be shielded merely by its introduction at a review committee meeting. Further, the hospital must identify all persons who have knowledge of the underlying event which is the basis of the malpractice action regardless of whether those persons presented evidence to a hospital review committee.”

Based on the above reasons and the “work-product” view of the privilege, the Court explained that “mere submission of information to a peer review committee does not satisfy the collection requirement so as to bring the information within the protection of the statute.” In particular, “facts contained in the incident report, as opposed to the conclusions drawn in the report” are not privileged. These facts should have been documented in the patient’s medical record and are consequently discoverable (and admissible as evidence).