AUGUST 2009

MEDICAL MALPRACTICE UPDATE

Supreme Judicial Court Clarifies Extent of Peer Review Privilege As It Relates to Physician Credentialing Files

On August 11, 2009, the SJC issued a decision in the case of the Board of Registration in Medicine v. Hallmark Health Group delineating the discoverability of physician credentialing files subpoenaed by the Board of Registration in Medicine prior to the commencement of any adjudicatory proceedings against the physician. The case arose in response to a patient’s complaint of physician misconduct during a physical examination. The complaint prompted the disciplinary unit of the Board to initiate an investigation and develop information that suggested that physician failed to report certain criminal charges on his license renewal applications, which in turn required an investigation of whether the physician may have practiced medicine while impaired by alcohol or drugs.

After filing a discovery action, the Board issued subpoenas to hospitals where the physician practiced seeking copies of the credentialing files. The physician objected on the grounds that the information was protected by the peer review statutes. A superior court judge agreed and entered summary judgment for the physician. The Board appealed on the basis that the peer review statutes did not apply. The SJC agreed with the Board and remanded the case to the superior court for an individualized consideration of whether any of the documents are protected by the peer review statutes (a privilege log created by the defendant did not provide sufficient detail for the SJC to make that determination).

In its decision, the SJC reviewed the applicability of the peer review statutes, G.L.c. 111, sec. 204(a) and sec. 205(b), to cases where the credentialing files were sought by the Board prior to the initiation of any adjudicatory proceedings against a physician. The SJC explained that although sec. 204(a) and 205(b) operate similarly with respect to shielding information from the public and all third parties other than the Board, they operate differently with respect to the Board. The SJC ruled that while sec. 204(a) materials (proceedings, reports and records of a medical peer review committee) are accessible to the Board only after commencement of an adjudicatory proceeding, materials that are less central to the peer review process (i.e. incident reports, patient complaints, and credentialing items) are protected only by sec. 205(b) (records maintained for credentialing verification) and are therefore accessible by the Board at an earlier stage of the investigation.

If you would like a copy of this decision, please do not hesitate to contact this office.

DIEDRICH & DONOHUE, LLP 31 State Street Boston, MA 02109 Tel. (617)-367-0233 Fax (617)-367-0499 www.ddcounsel.com