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Tuesday, March 13, 2012

Will Patient Safety Initiatives Harm Physicians?

By Brian S. Kern, Esquire
Medscape Today News
Originally published on March 12, 2012

Peer review, the patient safety method designed to identify ineffective, unethical, or impaired physicians, can help improve the delivery of medical care, provide risk-management lessons, and lead to improved policies and procedures. At the same time, some doctors and hospital administrators have expressed concern that peer review produces fodder for civil or criminal lawsuits against physicians and healthcare institutions.

The body of law on patient safety initiatives and their level of confidentiality has evolved considerably. Historically, case law, recognizing the importance of peer-review procedures -- and the need to keep them confidential -- has protected self-critical analysis and other forms of internal investigation.

For example, in Christy v. Salem (2004), a New Jersey appellate court addressed whether a hospital's peer-review committee report was discoverable in a medical malpractice case. In declining to "adopt the privilege of self-critical analysis as a full privilege," the court chose to rely on a "case-by-case balancing approach" and essentially held that facts contained within a report are subject to legal discovery, but "evaluative and deliberative materials" are not.

Shortly thereafter, the Garden State adopted the New Jersey Patient Safety Act (NJ PSA), which in large part codified Christy v. Salem. The measure was tested early when, during the discovery phase of a medical malpractice trial against an obstetrician, a plaintiff's attorney sought hospital reports related to patient safety. The defense objected, asserting that the information was privileged and thus legally protected against disclosure.

The entire story is here.