Chapter 27 Peer Review
PEER REVIEW – GENERALLY……….. 27:1
THE PEER REVIEW STATUTE – PRIVILEGE………….. 27:2
NRS 630.045 states [t]he purpose of licensing physicians … is to protect the public health and safety and the general welfare of the people of this state. Any license issued pursuant to this chapter is a revocable privilege and no holder of such license acquires thereby any vested right. If the right to practice medicine is a revocable right, there must be a means by which the performance of a physician can be periodically or otherwise reviewed, without the fear of retribution or penalty against those participating in the peer review process. In Nevada, the administrative details of providing quality control are not, for the most part, controlled by statute. What is mandated by statute is the power of the Board of Medical Examiners to determine the competency of physicians, and the protection or privilege to be afforded those communications which become part of the review process.
In this chapter, we will briefly examine the requirement to provide quality control of medical services through the use of peer reviews. The main focus will be on the so called peer review statute, which treats as privileged certain communications used in the course of examining a physicians competency or the quality of care provided.
PEER REVIEW GENERALLY
The Nevada Board of Medical Examiners (BME) is chartered in Chapter 630 of the Nevada Code (Physicians & Physicians Assistants) to [determine] the initial and continuing competence of doctors of medicine in this state. NRS 630.003. Although this statute, and the corresponding statutes in Chapter 630, do not specifically call for peer review as part of the process to determine competency, it clearly falls on the hospitals of the state to establish Quality Assurance Programs & Committees, Peer Review Committees, and similar organizations to review physician performance. As we will see in section 14.3, the legislature clearly intended for such peer review committees to exist, spurned on by the protection afforded under NRS 49.265. It is safe to assume that any and all hospitals and other health care facilities in the state have some form of peer review in place to investigate complaints or to review the competency of the physicians on staff.
Managed care facilities MUST, under NRS 695G.180, establish a quality assurance program which includes, specifically, peer review. NRS 695G.180(1)(b). For those health care providers employed by the managed care organization, the organization must make clear the manner in which the quality assurance program operates. NRS 695G.180(2)(b).
Whether stated explicitly, as in NRS 695G.180, or rolled into an overall program of quality assurance, peer reviews play an important role in ensuring the quality, integrity and consistency of the medical care provided in this state.
THE PEER REVIEW STATUTE – PRIVILEGE
One of the critical concerns in any investigation is how to elicit helpful testimony or other evidence, without compromising unnecessarily the source of the information. If peer reviews and quality assurance programs are to be effective, the individuals and organizations providing potentially damaging information must have some degree of protection from retribution or scorn. The Nevada legislature realized the legitimacy of this concern, and addressed the issue under Chapter 49 of the Nevada Code, Privileges. NRS 49.265 has been referred to in the courts, and elsewhere, as the peer review statute. It provides the needed privilege protection for much of the information used by a quality assurance committee or other reviewing body during the course of medical peer reviews.
Chapter 49 of the Nevada Code addresses legal privileges, or the protection of communications, the disclosure of which is determined to be more harmful than good for society as a whole. NRS 49.265 deals specifically with the protection of the proceedings and records of various medical review committees. NRS 49.265 states in relevant part:
(a) The proceedings and records of:
(1) Organized committees of hospitals, and organized committees of
organizations that provide emergency medical services …, having the responsibility of evaluation and improvement of quality care rendered by those hospitals or organizations, and
(2) Review committees of medical and dental societies, are not subject to discovery proceedings.
(b) No person who attends a meeting of any such committee may be required to testify concerning the proceedings at the meeting.
Simply stated, NRS 49.265 protects the proceedings and records of review committees from disclosure to either party, or the public, during legal proceedings against either an individual or an organization. This means that any testimony given during the course of a review committee meeting, any notes or minutes generated during such a meeting, and any report or statement generated during the review process, may be kept secret. The intent of the statute is to assist quality assurance committees, or other forms of peer review, in the gathering of information critical to ensuring the quality of medical care provided in the state. If individuals or groups understand that the testimony they give during review committee proceedings will not be disclosed to the public (or anyone outside the meeting itself), they are more likely to be helpful and forthright. The same is true for the committee members themselves. The committee members, assuming they honor the confidentiality of the proceeding, can perform their duties without the fear of retribution.
There are, of course, always exceptions to the protection provided under paragraph 1 of the statute. The following statements or records are not protected from discovery:
- Statements made by persons party to an action (legal) or proceeding being reviewed by the committee;
- Statements made by persons requesting staff privileges at a hospital;
Proceedings against insurance carriers for bad faith in refusing to accept a settlement offer within policy limits;
- Any information, relating to the proceedings of such a committee, which is contained in health records furnished in accordance with NRS 629.061 (Health Care Records, Inspection, Use in Public Hearings …).
These exceptions make several points clear. First, interested parties cannot come before the committee and then claim the privilege of silence to cloak or protect their statements before the committee. Second, claims of insurance bad faith are so significant and severe that the proceedings and records should not be protected. Finally, if the records of the committee meeting are legitimately contained in medical records which must be turned over under NRS 629.061 (and which have presumably been available for any number of people to review), the claim of privilege is meaningless. Clearly, the legislature intended the protections of NRS 49.265 to be very narrow in scope.
The idea that NRS 49.265 has a very narrow application has been repeatedly reinforced in the Nevada courts. The focus has been primarily on two issues: items obtained outside the discovery process and items not specifically part of the committee proceedings. In Ashokian v. Department of Insurance, 109 Nev.662, 856 P.2d 244 (1993), the Supreme Court of Nevada pointed out the very narrow nature of privilege statutes in general, and went on to say that, with regard to NRS 49.625, the statute is silent as to materials acquired without recourse to discovery proceedings. Only those materials obtained by compulsory discovery devices are protected from disclosure by the privilege of NRS 49.265. Items acquired outside the discovery process, even those used by the quality assurance or peer review committee, are not protected. This means that otherwise NRS 49.025 privileged information leaked to someone outside the peer review committee hearing (for example, in the form of meeting notes or meeting generated documents ) is not privileged and may be used to base a medical malpractice complaint.
Only the formal proceedings of the committee, and the internal records generated as part of the proceedings, are protected by NRS 49.265. In Columbia Healthcare Corporation v. Eighth District Court of the State of Nevada, 936 P.2d 844 (1997), the Nevada Supreme Court took great pains to review the application of peer review privilege statutes in other states. Agreeing with the general consensus, the Court concluded [t]he legislative history of NRS 49.265 also demonstrates that the intent of the legislature was to protect only (emphasis added) the internal operations of peer review. The materials addressed in this case specifically were occurrence reports generated precedent to the peer review proceedings. The rationale applies, however, to any document created outside the committee proceedings. The Court summarized its position by reemphasizing committee minutes make it clear that the legislature intended to protect only documents derived directly from the peer review process. The message is clear, if it is not part of the committee proceedings, generated at the time of the proceedings, it is discoverable and not privileged.
Peer reviews, by quality assurance committees or other reviewing bodies, are critical to maintaining the quality and high level of proficient medical care in the state. Physicians are needed as members of these committees. In addition, physicians are often needed to testify before the committees during a review. In either case, physicians need to know that the proceedings and minutes from the proceedings will be protected from public disclosure. Only in this way will participants be truly forthright. Within the exceptions outlined in the statute, formal peer review proceedings are not discoverable. This does not mean that any related materials are privileged. On the contrary, only formal proceeding materials are protected. Nor does the statute protect materials obtained through legal means other than discovery. The legislature intended, and the courts have supported, a very narrow interpretation and application of the peer review statute.