QUESTION:
Your Question of the Week a few weeks ago provided a bunch of good tips for handling external reviews (that we had happily followed!), but it didn’t address one big issue our peer review committee is wrestling with right now. Specifically, our committee arranged for an external review on a highly technical procedure that only one member of our medical staff performs that had resulted in a number of patient complications. The issue that we are struggling with right now – with a difference of opinion among the committee members – is whether we need to show that report to the physician. Some members of the committee think we will waive the peer review privilege if we do, while others disagree and say we have to show her to be fair. Do we?
ANSWER FROM HORTYSPRINGER ATTORNEY LEEANNE MITCHELL:
In terms of waiving the peer review privilege, every state is different and you certainly should consult your legal counsel to make sure you are operating within the terms of what your state might require; however, it would be a rare/unusual statutory provision or court interpretation that would result in the peer review privilege being waived by a peer review committee sharing an external review with the physician whose care was being reviewed – when it is being done in order to allow that individual to provide additional input into the review. That kind of interaction is at the heart of the peer review process itself.
Presuming waiver of privilege is not an issue, then yes, in order to be fair to the physician, we do strongly recommend that individuals whose care is the subject of an external review be given the opportunity to review those reports and to provide a response. Ideally, this means that the report is provided to the individual in advance and the physician is given a period of time in which to review and provide a written response to the committee versus, for example, merely allowing the physician to review the report for the first time at the peer review committee meeting. The goal of peer review is for the committee to have full and complete information before it makes a determination, and an informed and thoughtful response from the physician at issue is vital.
Sometimes, the concern that we hear raised is that the physician may contact the external reviewer, trying to lobby them to change their opinion, or even harass or threaten that individual. If that is a concern, it can be addressed in advance by informing the physician that attempts to contact the external reviewer are inappropriate and would be assessed under the medical staff’s professionalism or code of conduct policy. And in extreme cases, where the committee is truly concerned about the potential of such conduct, an alternative may be to provide a summary of the reviewer’s credentials and the body of the report only, deleting the external reviewer’s name and contact information – explaining why the committee took that step in the correspondence to the physician.
If you have a quick question about this, e-mail LeeAnne Mitchell at lmitchell@hortyspringer.com.