The Scope of the Peer Review Privilege

State ex rel. Wheeling Hosp., Inc. v. Wilson, — S.E.2d — (W.Va. 2016)

West Virginia’s Supreme Court of Appeals has recently delineated the scope of the physicians’ peer review privilege that protects the confidentiality of any information created exclusively for or by peer reviewers. This broad privilege has an important limitation: information, documents, and records ordinarily privileged become unprotected and accessible by third parties when (1) they are “otherwise available from original sources” or when (2) “an individual [has given] a valid waiver authorizing the release of the contents of his file pertaining to his own acts or omissions.” W. Va. Code § 30–3C–3 (1980).

The Court clarified in connection with this limitation that “where documents sought to be discovered are used in the peer review process but either the document, itself, or the information contained therein, is available from an original source extraneous to the peer review process, such material is discoverable from the original source, itself, but not from the review organization that has used it in its deliberations.”