Does information collected by a hospital to review the qualifications of a physician for admission to medical staff constitute ”peer review” or ”quality improvement”?
In a decision issued September 20, 2012, the Washington State Supreme Court concluded that when a hospital, through its medical staff, initially reviews the qualifications of a physician for admission to its medical staff and for the granting of clinical privileges, it is NOT engaged in peer review or quality improvement activities. Fellows v. Moynihan, et al., No. 85382-7 (S. Ct. Sept. 20, 2012). Therefore, information collected and documents created in the course of this initial appointment and credentialing activity are not protected by the privileges created under RCW 4.24.250 or RCW 70.41.200.
In addition, because the peer review/quality improvement privilege does not protect disclosure of any restriction or limitation on a physician’s privileges that results from the process or the reasons for the restriction or limitation, peer review/quality improvement records relating to the decision and reasons for the decision also are discoverable. The Supreme Court remanded the case to the trial court for the judge to review documents relating to the decision to limit a physician’s privileges and determine which of the documents must be produced in discovery.
For those who work in this area, editorial comments are unnecessary to appreciate the effect of this decision on peer review and quality-improvement activities in Washington’s hospitals. We now wait for the decision in Cornu-Labat v. Hosp. Dist. #2 Grant Cty., No. 295907, currently pending before the Washington Supreme Court that also raises peer review privilege questions. Since oral argument in the Cornu-Labat case occurred on the same day as oral argument in the Fellows decision, we should not have to wait for long.
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Greg Montgomery. Greg serves as the leader for the Miller Nash healthcare practice team. Greg’s healthcare practice involves advice on regulatory compliance, including antitrust, Stark, and Anti-Kickback laws and regulations; and non-profit tax issues in the context of physician contracting, integrated networks, mergers, and affiliations. He also advises clients on EMTALA issues. In addition, Greg provides counsel to hospitals and physicians on medical staff matters, peer review, and corrective action. He has extensive experience in the fair hearing process and in ligation arising from corrective actions regarding physician medical staff membership and hospital clinical privileges. Greg regularly represents health care practitioners before state licensing and disciplinary boards and agencies in Washington and Oregon.
Greg is frequently invited to speak to healthcare professionals including providers and medical staff professionals, and he regularly authors articles on healthcare law topics. He also serves as the editor of, and frequently contributes to, Miller Nash’s healthcare law blog, Insights. Greg can be contacted at greg.montgomery@millernash.com.
