PEER REVIEW RECORDS

State ex rel. Brooks v. Zakaib, No. 31782 (W. Va. Nov. 15, 2004)

A passenger in an automobile struck by a train suffered an injury requiring surgery and was taken to an area medical center. Following the surgery, he became a paraplegic and filed a malpractice lawsuit against the surgeon. After the suit was filed, the surgeon left the medical center while the medical center was conducting a peer review investigation of the surgeon. Following the peer review proceedings, the local newspaper allegedly printed an article that quoted verbatim from the peer review documents at issue. The surgeon sued the medical center for defamation.

As part of the defamation suit, the surgeon petitioned the trial court to order all documents pertaining to the suit sealed. A subsequent hearing allowed the documents to become unsealed, but later, at the surgeon’s request, the court order sealing the records was reinstated due to the fact that peer review documents are confidential and privileged under the West Virginia peer review statute.

The Supreme Court of Appeals held that the malpractice plaintiff's counsel should have been given an opportunity to participate in the hearing to conceal records in the defamation suit because his rights would be substantially affected.