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ED Discussions after Patient Death Not Covered by Peer Review Privilege
Ohio court compelled resident to answer questions about ED conversations about care of patient who died shortly after discharge
By Michelle Bitterman Fish, JD and Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
Jason Rinehart presented to the emergency department (ED) of Akron General Medical Center with nausea, vomiting, and back pain.1 No definitive diagnosis was made, and the patient was discharged with medications to control his symptoms. He died hours after discharge, and an autopsy revealed an aortic dissection as the cause of death. The patient's father, Mr. Giusti, sued the hospital and treating physicians for negligent diagnosis and treatment of his son.
The resident involved in the care of the patient was Dr. William Kurtz. A couple of days after the patient's death, Dr. Kurtz received a phone call from someone in the ED asking him to come speak with the chairman of the ED, Dr. Daniel Schelble.
The issue at this stage of the case was whether the subsequent conversation between the resident and the ED chairman was privileged, i.e., protected from discovery via deposition and from use at trial by the state of Ohio's peer review protection statute.1,2
The following exchange occurred during the plaintiff's deposition of Dr. Kurtz:
Plaintiff's lawyer: "Tell me about your conversation with Dr. Schelble."
Hospital's lawyer: "Objection. I'm not going to let him answer."
Plaintiff's lawyer: "Why is that?"
Hospital's lawyer: "It's my understanding you can establish with him that it's his belief Dr. Schelble was doing a review based on a death that occurred within so many hours of a presentation which is, as I would understand it, peer review."
Plaintiff's lawyer: "Why is it that Dr. Schelble called you in?"
Dr. Kurtz: "He just wanted to go over what had happened."
Plaintiff's lawyer: "Was it just you and him alone?"
Dr. Kurtz: "Correct."
Plaintiff's lawyer: "And did he say anything beforehand about that he was conducting some kind of review for the hospital or conducting some kind of investigation or did he just say I want to talk to you about what happened?"
Hospital's lawyer: "Objection. You can ask him what his understanding was. I'm not going to let him start talking about what Dr. Schelble talked to him about."
Plaintiff's lawyer: "Let me put it to you this way, were you made aware in any way that this was some kind of standard hospital review?"
Hospital's lawyer: "Objection."
[Court reporter repeated the question.]
Hospital's lawyer: "I'll object, but you can answer that."
Dr. Kurtz: "My understanding is he just wanted to review what had happened."
Plaintiff's lawyer: "With you?"
Dr. Kurtz: "Quality assurance-type thing is my understanding."
After this discussion, the attorney for the plaintiff asked still more questions regarding the content of the conversation between Dr. Kurtz and Dr. Schelble, including:
• "Tell me exactly as you recollect the questions that Dr. Schelble asked you when he called you in to talk about this a couple of days after the incident" and
• "Tell me anything else you can remember about that conversation with Dr. Schelble a couple of days after, I guess it would have been, March 9, 2005."
However, on advice of his counsel Dr. Kurtz refused to answer these questions.
The Peer Review Privileges
In a courtroom, the rules of evidence determine what testimony is admissible.3 Generally, evidence is admissible if it is relevant.4 An exception to the general rule exists where a privilege applies.4 A privilege is a special situation where even though the testimony is relevant and would aid a court and jury in determining the outcome of the case before the court, public policy or a greater consideration dictates that the testimony should not be admissible. Examples of privilege include spousal privileges, doctor-patient privilege, attorney-client privilege, and medical peer review privilege.
The objective of the peer review privilege is to encourage scrutiny of medical care so that a hospital and physician can ensure that the standard of care is being followed. Physicians and other staff members must be free to candidly discuss situations that have occurred without the fear of litigation in order to achieve the peer review objectives.5
Peer review privilege is a statutorily protected privilege in Ohio, as it is in other states, and only applies to civil (and not criminal) matters.2 Statutory privileges however, being in derogation of common law, are strictly construed by the courts.6 Therefore, the peer review privilege is not absolute, and in order to protect the privilege certain criteria must be followed.1,7 Additionally, the party claiming the privilege has the burden of proving that the privilege applies to the requested information.1
For example, the privilege does not extend to information "within the individual's knowledge."1,2 Impor-tantly, this means that while information a person learns within the peer review committee is privileged, personal knowledge learned outside the committee format is not privileged. Moreover, information can not be presented to the committee by the original sources simply to prevent its admissibility at future litigation.1 Witnesses cannot be forced, though, to testify regarding what was said or discussed during the peer review process.1
In Ohio, it is a judge (not a jury) that is charged with determining whether certain testimony falls within the peer review statute.1 The physician or hospital claiming that certain testimony is protected by the privilege has the burden of proving to the judge that the privilege does indeed apply to the given situation.1
At a bare minimum, the party claiming the peer review privilege must show that a peer review committee existed and that it actually investigated the incident. A discussion among peers of the type usually had in preparation for a peer review proceeding, such as between the two doctors in this case, is not alone sufficient to gain the protection of the peer review privilege.
The hospital or physician must also establish that the information sought falls into one of the categories of testimony protected by the statute. Under the Ohio statute, similar to most states, a physician cannot be asked at deposition to reveal:
• His or her testimony before the peer review committee;
• Information the physician provided to the committee; or
• Opinions the physician formed as a result of the committee's activities.
In summary, when presented with a claim that certain testimony is privileged, a court will consider the following before determining whether testimony is within the peer review privilege:
• Proof of existence of a peer review committee;
• Proof the peer review committee investigated the incident;
• Whether the privilege applies generally; and
• Whether requested testimony falls within testi- mony protected by statute (including testimony or information provided to committee, or opinions formed due to committee investigation).1
To ensure that investigations of an incident will fall within a state peer review privilege, it is important to make sure that each of these elements is satisfied.
Decision of the Appeals Court
The court held that the hospital failed to carry its burden of proof that the conversation between Drs. Schelble and Kurtz was protected by the Ohio peer review statute.1,2 Therefore, the appellate court ordered Dr. Kurtz to answer questions regarding the content of his discussion with Dr. Schelble.
The court agreed that the hospital had a process for "performing quality assurance reviews of patient care" and that Dr. Schelble was part of that process. (Not long after the incident, Dr. Schelble died, so he obviously couldn't testify to the nature of his conversation with Dr. Kurtz. Instead, the hospital had the physician senior vice president of the medical staff provide an affidavit stating that Dr. Schelble, as chairman of the Department of Emergency Medicine, was responsible for performing quality assurance reviews and that as part of that process "would conduct interviews with the individual care providers involved in the patient's care that was the subject of the review.")1
Peer Review Process: Lessons Learned
• Know how your state law defines the peer review process and the elements necessary to invoke the peer review privilege.
• Establish policies and procedures that are certain to incorporate expected conversations and materials into the peer review process, and which definitively protect the privilege.
• Follow your hospital's peer review procedures religiously, and carefully document compli- ance with them in all situations.
• Recognize that you will have to prove compli- ance with state peer review requirements to assert the privilege and protect discussions from discovery by plaintiff attorneys.
However, the court determined that the hospital failed to meet its burden of proof that its peer review committee ever initiated or conducted any actual review of the patient's death. It viewed the conversation between the two physicians to be a private one, since it was not clearly delineated at the beginning of their discussions that review of the incident was to be part of a formal peer review investigation.
The court considered Dr. Kurtz's last comment in his deposition, when he said, "Quality assurance-type thing is my understanding." But the court noted he repeatedly answered plaintiff's attorney that Dr. Schelble just wanted to talk about what happened, and only after his own lawyer's repeated objections on the peer review privilege did he mention "quality assurance." Thus, the court concluded that Dr. Kurtz's statement speculating on Dr. Schelble's purpose for the meeting was not evidence and was insufficient to carry the hospital's burden of showing that his conversation with Dr. Schelble was conducted as part of a peer review process.
Therefore, because the hospital could not prove that the conversation was part of a peer review committee proceeding, it could not invoke the privilege.1
This case illustrates the importance of implementing and following clear formal processes when faced with a potential incident that could lead to litigation. Had this conversation occurred after a formal peer review committee was formed, or had the two parties to the conversation been more transparent about the reasons for the discussion, the court would have been able to rule that the conversation fell under the peer review privilege. Undoubtedly, the hospital's defense was hampered by the inability of its ED chairman to testify due to his untimely death.
To protect peer review materials, it is very important for physicians and hospitals to understand the applicable state and federal rules. Strict compliance with these requirements is essential to protect the peer review process. It is also important to understand the limitations of the peer review privilege and to consult an attorney when necessary to protect testimony before or related to the peer review committee proceedings.
1. Giusti v. Akron Gen. Med. Ctr., 2008-Ohio-4333 (9th Dist. Ct. App. 2008).
2. Ohio Revised Code (O.R.C) § 2305.252
3. See generally, Fed. R. Evid. 501. The Federal Rule of Privilege looks to the common law developed in each state to determine what testimony is privileged in a particular matter.
4. See generally, Fed. R. Evid. 104
5. Institute of Medicine (IOM). Kohn LT, Corrigan JM, Donaldson MS, eds. To Err Is Human: Building a Safer Health System. Washington, DC:National Academy Press;2000.
6. Weis v. Weis, 147 Ohio St. 416, 428 (1947).
7. E.g., Adkins v. Christie, et al., 488 F.3d 1324 (11th Cir. 2007) (Ruling that the medical peer review privilege does not apply to federal discrimination claims).