The Peer Review Privilege: No Exception for Objective Facts

Krusac v. Covenant Medical Center, Inc., — N.W.2d — (Mich. 2015), 2015 WL 1809371

This recent decision of the Michigan Supreme Court foiled an attempt at establishing an “objective fact” exception to the peer review privilege. An elderly hospital patient allegedly rolled off the operating table, fell on the floor, and died shortly thereafter. As part of the hospital’s peer review procedure, one of the nurses compiled an incident report and submitted it to her superiors. The plaintiff in the ensuing wrongful death action subpoenaed that report. The trial judge ruled that the plaintiff was entitled to see the report’s first page that summarized the facts of the incident. The hospital appealed all the way to Michigan’s Supreme Court to vindicate its rights under the state’s peer review privilege, MCL 333.20175(8) & MCL 333.21515, that extends to “records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine.” These information items are “confidential, … are not public records, and are not subject to court subpoena.”

Based on this broad formulation of the privilege, the Court ruled that “the peer review statutes do not contain an exception for objective facts contained in an otherwise privileged incident report” and reversed the trial court’s decision.

This ruling was unquestionably correct and it also stands on firm policy grounds. As an initial matter, the plaintiff could subpoena the nurse as a witness and question her about the incident. The peer review privilege does not bar such direct questioning, as opposed to plaintiffs’ intrusion into a confidential internal communication between the hospital and its personnel. Furthermore, the plaintiff could summon all the information from the deceased patient’s file, which, according to prevalent rules of practice, was supposed to cover the fall incident as well. Absence of such information triggers spoliation inferences against the hospital. Along with penalties for perjury, these rules virtually guarantee patients’ access to relevant information. Creating an “objective fact” exception to the peer review privilege would therefore unnecessarily discourage candid peer review.