Legal and Legislative Updates

By Deana Johnson, JD

Posted on January 30, 2008 – Most states have detailed laws protecting medical peer reviews. Even when subpoenaed during a lawsuit, peer review often is protected from disclosure.

Two common forms of peer review in the correctional setting are post-death mortality and morbidity (M&M) reviews and quality assurance documentation. If a state law medical negligence suit is brought against medical providers, such peer review is not discoverable in most jurisdictions.

But does this same information enjoy the same protection when the suit is brought in federal court alleging a constitutional violation (the so-called Section 1983 case)? Unfortunately, the answer to date is no.

The reason is that there is no legislation creating a federal peer review privilege and most federal courts have refused to adopt the existing state law protections. Specifically, Federal Rule of Civil Procedure 26(b)(1) and Federal Rule of Evidence 501 allow discovery on any matter that is not privileged. These federal rules define “privilege” by the principles of common law as interpreted by the courts. This is the federal court’s fancy way of saying that it is not required to adopt state rules of privilege when the cause of action brought by the plaintiff is federal, such as an Eighth or Fourteenth Amendment deliberate indifference claim filed under 42 U.S.C. — 1983.

Neither the U.S. Supreme Court nor any of the federal circuit courts of appeals have yet recognized a federal peer review privilege. While there are mixed rulings in the lower federal district courts, the majority of them to date have found that peer review documents do not enjoy any sort of privilege. Defendants trying to protect the documents fight an uphill battle because the U.S. Supreme Court has already found a presumption against the creation of any new privileges. U.S. v. Nixon, 418 U.S. 683 (1974). It therefore becomes like trying to argue to the IRS for a new tax exemption category.

So now that you are aware peer review may not enjoy the privilege you thought was mandatory, does that mean the documents should not be created? The answer in most instances is no.

While it is absolutely concerning that peer review is not provided the protections in federal court that it arguably deserves, the numerous strong policy reasons for performance of the review and creation of documentation usually outweigh any risk associated with eventual disclosure. Instead, what practitioners and policymakers creating peer review policies should keep in mind is that specific written guidelines are needed to allow the necessary examination of treatment without extraneous speculation or second guessing that can create liability and even worse, finger pointing during litigation.

For instance, in addition to sections for recitation of facts, document review and outcome, many peer review policies contain sections for opinions and overall conclusions. Providers filling out the documents feel compelled to complete all sections. Thus, they are encouraged rather than discouraged from speculating and speculation can create liability where none existed.

Unless generalized conclusions or opinions are necessary for quality assurance purposes under the particular circumstances of your review, legal counsel should be consulted before providing these in peer review documents.

By way of example, assume that a jail inmate (Decedent) on the mental health case load of your facility is housed in general population. Decedent is then killed by another inmate (Assailant) who is housed in the same living quarters. At the time of the assault, Assailant was still awaiting evaluation by the mental health staff to determine whether he should be placed on the case load and assigned to different housing. The evaluation was scheduled for later in the day that the attack on Decedent occurred. Once the evaluation took place, it was determined that Assailant needed mental health treatment, medication and special housing. This decision was based, in part, on the attack of Decedent.

Your facility has a mandatory postdeath peer review process which includes an M&M review. You are assigned to conduct the M&M review since you were not involved in the treatment of either Decedent or Assailant. The easy part of the form is review of the existing documentation and recitation of the facts as shown in those documents. The M&M form also contains a section for opinions/conclusions. You note that earlier assessment of Assailant may have resulted in alternative housing placement, but it is impossible to determine that fact since part of the post-incident evaluation and assessment of Assailant was based on information from the assault. Therefore, you cannot conclude whether earlier assessment would have made any difference in the outcome of the assault on Decedent.

The estate of the deceased inmate subsequently decides to file suit. Two types of suits are available: a state law medical negligence claim or a federal Section 1983 claim.

If the medical negligence claim is filed, it could be based upon an alleged improper decision to allow Decedent to be housed in general population or an alleged failure to place Assailant on appropriate mental health medication and/or housing prior to the attack. If medical negligence claim is filed, depending upon the state in which you practice, any peer review documents, including your M&M review, would be privileged.

However, assume for a moment that the estate instead decides to file a Fourteenth Amendment constitutional claim in federal court. The M&M review you have created post-death is now open to discovery. If you had not been extremely careful to qualify your conclusions, you could have created liability toward co-workers or even the correctional staff.

How? Assume your conclusion was that the correctional staff’s decision to route Assailant into the routine mental health intake category was improper and that he should have been put at the top of the list for immediate referral. The Decedent’s estate could name correctional staff in the lawsuit based on your speculation. Or imagine the issues created by a statement in the M&M review such as: “Had this reviewer been handling the case, Decedent would have been housed in a single cell in the mental health dorm rather than in general population.”

It quickly becomes apparent how well intentioned comments in peer review can be used to the detriment of others during litigation.

While the simpler solution may seem to be not to create the M&M document at all, it would be far more concerning for the lawyers defending a wrongful death suit to have no documentation of postmorbidity review. Even if the M&M review contained some concerning opinions or arguable finger-pointing, a nonbiased and timely post-death review documentation is always preferential to no documentation.

Thus, this article is designed not only to alert you that peer review may not enjoy all of the privileges you assume but also to convince you that peer review is absolutely necessary. The balance is to consult with your human resource and/or legal department before creating the documentation to insure that you are diminishing the chance of liability rather increasing it.

Ms. Johnson is an attorney with Insley and Race, LLC, in Atlanta, Georgia. She may be reached at djohnson@insleyrace.com.