Save thousands of lives every year: Resuscitate the peer review privilege.

• Author: Williams, Alan G.

1. INTRODUCTION 221 II. PREVENTABLE HOSPITAL DEATHS 225 III. PEER REVIEW 227 A. Credentialing and Admitting "Privileges" 228 B. The Morbidity and Mortality Conference 229 C. Immunity, Confidentiality, and Privilege 233 IV. EROSION OF THE PEER REVIEW PRIVILEGE 235 A. Federal Courts 236 B. State Courts 237 C. State Legislatures 238 V. THE PATIENT SAFETY AND QUALITY IMPROVEMENT ACT 240 A. How the PSQIA Should Work 240 B. Why the PSQIA Hasn't Worked Yet 243 C. How to Reduce Injuries and Deaths 245 VI. CONCLUSION 246 I. INTRODUCTION

   The needs of the many outweigh the needs of the few. (1)

   Doctors make mistakes--preventable medical mistakes--that kill or seriously injure patients. (2) The best way to reduce these preventable errors is through a medical peer review process typically referred to as a "morbidity and mortality conference." (3) However, over the past twenty years, federal and state courts, state legislatures, and state voters have effectively gutted the morbidity and mortality conference ("M&M") as a remedial and preventative tool, resulting in tens of thousands of unnecessary deaths every year. (4) Doctors need our help restoring the effectiveness of M&Ms. Congress has created the means to do so; (5) now, all the courts need do is use it. Otherwise, what has been happening over the last two decades will continue--physicians will fear the M&M, will either not participate in M&Ms or not participate fully, medical errors will not be thoroughly investigated and corrected, and the same preventable medical mistakes will continue to occur because physicians are scared if they admit during an M&M that they committed an error then, in a subsequent medical malpractice lawsuit, their admission will be used against them to prove negligence and liability. (6) Doctors aren't stupid--if we continue to punish them when they admit their mistakes then they'll simply stop admitting them... which is bad for everyone, especially patients.

   For nearly half a century the law recognized--either via case law or statute--a peer review privilege designed to immunize physicians and physician peer review committees, including M&Ms, from liability, and protect certain peer review statements, information, and materials from admissibility or disclosure in any subsequent legal proceedings. (7) Then, beginning in the mid-1990s, decisions in both federal and state courts, along with statutes enacted by some state legislatures--and even voter-initiated state constitutional changes--began to erode the peer review privilege. (8)

   Consider, six-year-old Hannah arrives with her parents at the children's hospital for a scheduled tonsillectomy. Hannah's parents are worried but surgeon Dr. Gwande reassures them the procedure is routine and then introduces Hannah to the anesthesiologist, Dr. Stevens. Hannah gets prepped for surgery, is administered anesthesia by Dr. Stevens, and counts backward from one hundred until she becomes unconscious. Dr. Gwande successfully and without incident removes Hannah's tonsils, but Hannah never wakes up from the procedure.

   Hannah's parents are devastated; they want answers regarding why their daughter died and assurances nothing like this will ever happen to someone else's child. The hospital summons Dr. Stevens and Dr. Gwande for a peer review morbidity and mortality conference to investigate what went wrong and how the hospital can ensure the mistake is not repeated. (9) During the M&M, (10) the two physicians candidly explain that they have investigated and identified the medical error that led to Hannah's death: the anesthesia dosage was mixed incorrectly, resulting in Hannah being administered 100 times the recommended amount. Unaware of the glitch in its procedures until this incident and subsequent investigative M&M, the hospital implements a new policy to ensure this type mistake never happens again.

   A year later, Hannah's parents sue the hospital and the two physicians, alleging medical negligence in the death of their daughter, and during the discovery phase of the lawsuit demand all the information, documentation, and statements/admissions made by Drs. Stevens and Gwande, including everything done and said at the M&M. The defendants object, claiming the protections of the peer review privilege and arguing that if M&Ms are not privileged, confidential, and inadmissible in any subsequent legal proceedings, physicians have no incentive to admit and discuss mistakes in an effort to prevent future similar errors. (11) Depending upon what jurisdiction Drs. Gwande and Stevens practice in, the M&M is either privileged and protected from admissibility or it is not.

   The law recognizes numerous evidentiary privileges, and values some privileges more than others: the attorney-client communication privilege is considered more sacred than the attorney work-product privilege, the spousal communications privilege more important than the spousal testimonial privilege. (12) Unfortunately, even where it still exists, the peer review privilege is way down on the list. Although other privileges certainly must be valued for what they protect, how can shielding what a client communicates to his attorney be more important or deserve greater legal protection than saving tens of thousands of lives every year? If Congress and state legislatures--which accept the premise that M&Ms result in improved medical care, fewer medical errors, and a reduction of preventable injuries and deaths--believe the peer review privilege affords physicians the best opportunity to maximize the benefits of M&Ms, shouldn't we value the peer review privilege at least as much as we value other evidentiary privileges? Shouldn't the peer review privilege--at a minimum--trump an individual medical malpractice plaintiff's attempt for monetary recovery? Weighing the needs of the many against the needs of the few, isn't saving tens of thousands of lives annually more important than a handful of medical malpractice plaintiffs improving their odds of being monetarily compensated? In this essay, I argue that it is.

   By enacting the relatively obscure Patient Safety Improvement and Quality Care Act (13) in 2005 (which did not truly take effect until 2009 (14)), Congress provided a tool that can be employed to resuscitate the peer review privilege, although no court has yet invoked the PSQIA and upheld the privilege. (15) In this essay, I argue that courts must employ the PSQIA and begin upholding the peer review privilege to protect M&Ms, which will ultimately result in an improved quality of medical care rendered, a reduction of medical errors, and fewer patient deaths.

   Part I of this essay summarizes the extent of the problem--many call it a crisis--of preventable deaths plaguing U.S. hospitals. Part II explains peer review, both in the context of physician credentialing/hiring and M&Ms, and the legal protections afforded under the provisions of immunity, confidentiality, and privilege. Part III discusses how federal and state court decisions, state legislative enactments, and voter initiatives have weakened existing protections for peer review, especially regarding M&Ms. Part IV describes the PSQIA and how it can--and should--be the solution to preventable hospital deaths. Part V concludes with a summation of the argument that courts employ the PSQIA privilege to protect M&Ms, and that physicians and hospitals do their part by fulfilling the requirements of the PSQIA such that they may invoke the privilege therein contained.

2. PREVENTABLE HOSPITAL DEATHS

   Few truly understood the extent and severity of the national crisis of preventable hospital deaths until publication of the 1999 Institute of Medicine's comprehensive report estimating that as many as 98,000 patients die each year in America's hospitals from preventable medical errors, (16) a mortality figure three times as high as the number of annual deaths caused by vehicular accidents. (17) Fourteen years later, a separate study concluded that more than 400,000 preventable deaths occur nationally each year as a result of medical errors. (18) Other studies have concluded that nearly half of all patients experience a medical error at some point during treatment, (19) as many as 18% of hospital patients endure a medical injury caused by a healthcare provider, (20) and "some medical errors are not known by clinicians and only come to light during autopsies, which have found misdiagnoses in 20% to 40% of cases." (21)

   A medical error is defined as "the failure of a planned action to be completed as intended (i.e., error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning)." (22) All medical errors do not result in harm or death, and all preventable medical injuries/deaths are not necessarily caused by medical errors. As of 2009, Medicare and Medicaid no longer reimburse healthcare providers for care rendered to rectify a "never event"; (23) however, most preventable medical injuries would not be categorized as never events (which, thankfully, are quite rare (24)). Regardless, preventable medical injuries and deaths--whether caused by medical error or not--continue to occur far too frequently in U.S. hospitals. Therefore, corrective measures must be undertaken to address preventable hospital deaths. Most physicians agree that peer review and, more specifically, effective morbidity and mortality conferences, present the best means to reduce preventable hospital deaths. (25)

   For example, on March 29, 2012, twelve-year-old Rory Staunton was discharged from the emergency room with a diagnosis of dehydration and nausea subsequent to a two-day-old cut on his arm. (26) Rory's pediatrician had sent him to the ER because Rory was complaining of pain and had vomited on the pediatrician. The ER physicians ordered lab tests, supplied Rory with I.V. fluids, determined Rory had improved, and sent him home. The lab tests, however, revealed Rory was producing neutrophils and bands...