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Protecting Peer Review, Morbidity/Mortality Information in Federal Litigation

By Kevin A. McQuillan

The need to protect confidential medical records can arise in many different contexts including but not limited to employment litigation [1], medical malpractice cases [2], and civil rights lawsuits [3]. Individuals and corporations alike should seek to apply state law peer review privilege as well as federal law patient safety work product privilege to avoid divulging confidential medical records in court. Prior efforts have had mixed results: state courts readily recognize state law privileges while federal courts seldom recognize state law privileges but do recognize privileges created by federal statute. Since federal court is the typical venue for disputes involving employment and civil rights disputes, medical professionals should be aware of the application of these various rules.

Most, if not all, states have laws protecting “peer review” information (including “records, data, and knowledge collected for or by peer review entities”) from discovery in litigation [4]. In Michigan, the peer review privilege even prevents the Attorney General from discovering peer review information in professional licensing and disciplinary investigations [5]. However, in the context of federal court, a peer review privilege created by state law does not necessarily apply because the Federal Rules of Evidence only recognize privileges included in the federal common law and privileges created by federal law [6]. Thus, medical professionals engaged in a federal court dispute should look to federal law to protect confidential medical records.

The Patient Safety and Quality Improvement Act of 2005 (PSQIA) provides “substantial and broad” protections for “patient safety work product” gathered for and actually submitted to a Patient Safety Organization [7]. That information is defined expansively to include “any data, reports, records, memoranda, analyses (such as root cause analyses), or written or oral statements” created for and supplied to a Patient Safety Organization [8]. Some courts have recognized that the privilege also applies to documents that “are like the ‘patient safety work product’ protected under the [Act].” [9] When a document is generated in response to a critical event, in a peer review setting, outside of the patient’s medical record, and is then submitted into an organization’s Patient Safety Evaluation System (PSES) [10] followed by submission to a recognized Patient Safety Organization [11], the federal patient safety work privilege applies and protects the document from disclosure in federal court. If an organization fails to follow these steps, courts will not allow the organization to invoke the patient safety work product privilege. [12]

Kevin A. McQuillan is an attorney and counselor with the Chapman Law Group providing representation in 42 U.S.C. § 1983 litigation and appeals, as well as specializing in constitutional law. Kevin also assists clients with professional licensing, malpractice matters, and business disputes.

Chapman Law Group is a health care law firm dedicated to assisting you and your organization in this complicated area of privilege. Our team of skilled professionals are willing to work with you to provide the most optimum solutions.

  1. Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).
  2. Feyz v. Mercy Mem’l Hosp., 475 Mich. 663, 719 N.W.2d 1 (2006).
  3. Hadix v. Caruso, No. 4:92-CV-110, 2006 U.S. Dist. LEXIS 72967 (W.D. Mich. Oct. 6, 2006)
  4. See Weekoty v. United States, 30 F. Supp. 2d 1343, 1346 (D.N.M. 1998); Feyz, 475 Mich. at 680-81.
  5. Attorney General v. Bruce, 422 Mich. 157, 168-70; 369 NW2d 826 (1985).
  6. In re Department of Justice Subpoena Duces Tecum to Custodian of Records for Baptist Memorial Hospital, 2004 U.S. Dist. LEXIS 26153, 2004 WL 2905391 (W.D. Tenn. June 22, 2004).
  7. 73 Fed. Reg. at 70, 741; Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 535 (Tenn. 2010) (footnotes omitted); see also Department of Financial & Professional Regulation v. Walgreen Co., 970 N.E.2d 552, 555-58 (Ill. App. Ct. 2012); KD ex rel. Dieffenbach v. United States, 715 F. Supp. 2d 587, 595-96 (D. Del. 2010).
  8. 42 U.S.C. § 299b-21(7)(A).
  9. Tep v. Southcoast Hosps. Grp., Inc., No. 13-11887, 2014 U.S. Dist. LEXIS 168052; 2014 WL 6873137, at *5 (D. Mass. Dec. 4, 2014) (emphasis added) (citing Sevilla v. United States, 852 F. Supp. 2d 1057, 1068–69 (N.D. Ill. 2012); Francis v. United States, No. 09-4004, 2011 U.S. Dist. LEXIS 59762; 2011 WL 2224509, at *7 (S.D.N.Y. May 31, 2011); Dieffenbach, 715 F. Supp. 2d at 592).
  10. PSES refers to “the collection, management, or analysis of information for reporting to or by a patient safety organization.” 42 U.S.C. § 229b-21(6). To preserve patients’ and states’ ability to access the “original records underlying patient safety work product,” 73 Fed. Reg. at 70, 732, the term excludes original patient and provider records, as well as information “collected, maintained, or developed separately” from the patient safety reporting process, 42 U.S.C. § 299b-21(7)(B)(i)– (ii).
  11. See 42 U.S.C. § 299b-21(4); 42 U.S.C. § 299b-24(a)-(b)(1)(G). There are currently 81 certified patient safety organizations. See “Federally-Listed PSOs,” Agency for Healthcare Research and Quality, All PSOs must meet and maintain certain criteria to become and remain listed as a certified PSO in the Secretary’s database. 42 U.S.C. § 299b-24.
  12. See Johnson v. Cook Cnty., No. 15-C-741, 2015 U.S. Dist. LEXIS 115868 (N.D. Ill. Aug. 31, 2015).