The Peer Review Privilege for Office-Based Physician Practices (Part 1)

November 11, 2010, 02:33 PM

Peer review and quality assurance activities support quality patient care, but they also can create discoverable information in civil litigation. For many years, hospitals in Virginia have been able to carry out peer review and quality assurance activities with nearly complete confidentiality pursuant to state statute. Office practices previously had no such protection, but Virginia legislation has expanded the scope of privileged communications to non-hospital based quality assurance and peer review committees. Physician practices may now develop a formal peer review/quality assurance process and be protected by a privilege that will shield from discovery the proceedings, minutes, records, and reports . . ., together with all communications, both oral and written, originating in or provided to the committee. Va. Code Section 8.01-581.17(B). In the next post, I will outline the best way to develop that committee and process.

It is important to remember, however, that the confidentiality is not absolute. Although the Virginia courts (including the Supreme Court of Virginia) have consistently upheld peer review and quality assurance confidentiality, there are exceptions. First, oral communications regarding a specific medical incident involving patient care within 24 hours after the occurrence of the medical incident are not protected, even if made to a qualified committee. Written reports within the first 24 hours would fall within the privilege. Medical records and reports maintained in the ordinary course of a physician practice have no privilege
even those that are provided to a qualified committee. Incident reports are increasingly determined by courts to be in the nature of a medical record and therefore are likely discoverable. Thus, even after a peer review committee has been established according to prescribed guidelines, the physicians in the practice should be cautious of exceptions to the privilege. Counsel can advise the practice of the possible limitations of the statutory privilege and additional ways your group can protect the confidentiality of information that is developed for the purpose of improving patient care. —Jason R. Davis