Five Things Healthcare Providers Peer Review Privilege

July 10, 2023

The peer review privilege, a critically important but often misunderstood legal protection, shields certain records and proceedings from disclosure outside the peer review process. Healthcare providers engaged in medical staff credentialing and oversight activities should be familiar with these key considerations:

  1. Check State Law. Peer review privilege laws are designed to promote candid discussions about improving patient care by eliminating or reducing the threat that the substance of those discussions will be subject to discovery. Peer review privilege typically arises from state law, not federal law. Therefore, healthcare providers need to be familiar with their individual states’ peer review privilege laws.

    While some states’ peer review privilege laws are similar, others can vary significantly. For example, in some states, the peer review privilege may apply only to committees of certain types of healthcare facilities or organizations, such as hospitals or ambulatory surgical centers, but not others, such as physician practice groups.

  2. Know How to Qualify for the Peer Review Privilege. Don’t assume that certain types of activities automatically qualify for peer review privilege protection regardless of how those activities are conducted. In many states, the peer review privilege applies to the work of committees assigned particular functions. Actions taken outside the committee structure, therefore, may not qualify for the peer review privilege even if the subject matter of the work is the type providers would consider “quality assurance” or “peer review.”

    For example, a root cause analysis conducted by or at the direction of a qualifying committee likely would qualify for peer review privilege protection under most states’ laws, whereas a root cause analysis conducted by an administrator without the direction or input of a qualifying committee may not. Additionally, many states’ laws exempt certain factual documents, such as incident reports generated outside the peer review process, from peer review privilege protection.

  3. Periodically Revise Medical Staff Bylaws. Do your medical staff bylaws put you in the strongest position to qualify for the applicable peer review privilege? Providers need to know the answer to that question before they are in the middle of a dispute over whether they can claim the privilege.

    The best practice is for healthcare providers to periodically review their medical staff bylaws to be sure they are setting themselves up for success. No set of medical staff bylaws is perfect, and like other laws, the law in this area evolves over time. Healthcare providers should not be afraid to change their bylaws when they identify opportunities for improvement.

  4. Avoid Disconnects Between Real-World Actions, and Bylaws and Policies. A disconnect between what the healthcare provider’s written documents say about how it will conduct credentialing and oversight, and what the provider actually does, can weaken the provider’s legal position. If the documents don’t match actual practice, healthcare providers should change their documents, change their practice or both to bring them into sync.

  5. Remind Peer Review Participants of the Importance of Maintaining Confidentiality. Like other privileges, the peer review privilege can be waived by improper disclosure to unauthorized individuals within the organization and/or to third parties. Providers should regularly remind all participants of the importance of maintaining strict confidentiality outside the peer review process. While it can feel awkward stonewalling a curious colleague, often the best response to questions by individuals outside the peer review process is, “That’s confidential, and I can’t discuss it.”

Please contact the authors for additional guidance about these and other medical staff issues.