You know you made a mistake, now let me prove it

A recent medical malpractice case received a necessary privilege audit from the North Carolina Court of Appeals.

In any medical malpractice case, the physical and emotional tolls are gruesome.  Patients begin with an injury or ailment serious enough for medical attention, and a hope that their health can be restored.  They pay what can sometimes seem exorbitant costs to remedy the issue, and leave in a far worse condition than when they arrived.  The circumstances of Judy Hammond’s case fell in line with this unfortunate paradigm all too well.

Hammond, a North Carolina resident, underwent surgery in late 2010 to remove basal cell carcinoma from her face.  What was already a devastating procedure took a turn for the worse when things went terribly wrong at the Fayetteville medical center that day.  During the surgery, a build up of oxygen was trapped around Hammond’s face by the medical drapes.  When the surgeon employed the cauterizing device to remove the unwanted tissue, the oxygen around the patient’s face ignited in flames.  The resulting first- and second-degree burns left permanent scarring that covered Hammond’s face, tongue, head, neck, upper back, and right hand.  Other injuries such as respiratory thermal damage, bronchial edema, oral stomatitis, and nasal trauma were further consequences of the disaster that occurred in the O.R. that day.

It was a med mal case, plain and simple.  If you are not familiar with the concept of medical review privilege, it would seem like a “winner.”  Those privy to the intricacies of med mal law, however, will know that one very large, ominous hurdle is almost always going to be standing in the way, even in the most straightforward of cases.

The medical review privilege, the work product doctrine, and the attorney-client privilege are often used by defendants as armor in the courtroom.

When Hammond sued the handful of defendants, her attorney naturally served them with various discovery requests (see discussion beginning on page 5 of appellee’s brief), including demands for documents concerning the investigation of Hammond’s ill-fated surgery.  The defendants (one of which was the hospital where the procedure was done) refused to produce the documents, challenging the discovery request on the grounds that the documents were within the scope of the medical review privilege, the work product doctrine, and the attorney-client privilege.

These three legal principles—the medical review privilege, the work product doctrine, and the attorney-client privilege—are often used by defendants as armor in the courtroom, shielding some of their most incriminating evidence from the prying discovery requests of opposing counsel.  While all three principles carry much weight in litigation, medical review privilege (sometimes termed the peer review privilege) is the only one of the three solely used in medical malpractice cases, and will be the focus of this article.

Without the privilege, plaintiff’s attorneys would be practically free to demand the paperwork made by the defendant physician’s review committee that acknowledges and pinpoints where things went wrong.

The medical review privilege stems from the concept of peer review: the process by which physicians analyze and critique the methods of their colleagues in order to ensure that patients are receiving adequate quality of care.  In many instances where a procedure went wrong and resulted in harm to a patient, a medical review committee will evaluate the approach and techniques used by the treating physician, and will make recommendations to be used going forward so that the mistakes are not repeated.  Medical review privilege, then, is the term for the statutorily based set of rules enacted in almost every state which prevent these physician evaluations and recommendations from being reached via discovery.  Without the privilege, plaintiff’s attorneys would be practically free to demand the paperwork made by the defendant physician’s review committee that acknowledges and pinpoints where things went wrong.

The concept may be gut wrenching at first.  The situation is essentially one where the defendant physician or medical institution knows something went awry, has paperwork from an evaluation that indisputably states as much, and yet the plaintiff—who is most likely injured and struggling to prove the required negligence of a med mal claim—cannot reach these documents to help prove his or her case.

Many critics of the medical review privilege doubt its effectiveness in actually promoting better quality healthcare, and deem the statutes giving rise to the privilege as “little more than special interest laws protecting physicians and hospitals.”

The public policy-based rationale behind the privilege is like that of just about any legally recognized privilege: that the benefits reaped by promotion of open and honest conversations in some situations will outweigh the harm done to the opposing party’s “right to know.”  By keeping conversations, reviews, and other interactions among medical practitioners out of the reach of discovery requests, these communications can be brutally frank because there will be protection from a deluge of undeniable malpractice suits.  When practitioners are allowed to be honest in evaluating their own blunders and those of their peers, the greater good will be served by a healthcare system that is continually improving and progressing.  Or at least that’s the argument, anyway. 

Many critics of the medical review privilege doubt its effectiveness in actually promoting better quality healthcare, and deem the statutes giving rise to the privilege as “little more than special interest laws protecting physicians and hospitals.”  One cannot help but wonder why, “[i]n light of the general sentiment favoring unimpeded and liberal discovery, courts have typically applied heightened scrutiny when adjudicating a challenge to [the medical peer review] privilege.”  Should it not also be the party’s assertion of the privilege that is thoroughly scrutinized, however, so as to prevent medical institutions from labeling unwarranted documents with the necessary attributes in order to pass them off as undiscoverable?

In discussing the importance of unhindered discovery during the legal process and the scrutiny by which courts are to dissect a claim of privilege, the Supreme Court of the United States in United States v. Nixon said:

“The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.  To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense…. Whatever [the privilege’s] origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”

When historical cases have boasted the significance of open discovery in the American justice system again and again, it is no wonder that some vigilant courts have recently pulled in the reigns on the application of the medical review privilege.  The North Carolina Court of Appeals in the Hammond case (pdf) did exactly that.

The Court’s inquiry hinged on whether or not the investigatory team producing the document qualified as a “medical review committee.”

When the Court’s opinion in the Hammond case was issued in early September of 2013, the Court conducted a de novo review of, rather than hastily accepting, the defendant’s contention that certain documents fell under the medical review privilege.  The Court’s inquiry hinged on whether or not the investigatory team producing the document at debate qualified as a “medical review committee” as statutorily defined in N.C. Gen. Stat. § 131E-76.  With the underlying purpose of the medical review privilege in mind, the Court said that “[n]either the [document] itself nor any other document presented by defendants identifies the members of the [investigatory team] as being part of the ‘medical staff of [the hospital],’ as required by the statute.  This omission is fatal to defendants’ attempt to avail themselves of this provision.”

Defendants’ failure to meet the burden of showing that the investigatory team qualified as a medical review committee effectively ended the Court’s analysis.  To further demonstrate the principle that defendants cannot simply avail themselves of the privilege by checking boxes off of a list, however, the Court went on.

The Court noted that once it was established that a document was indeed made by a qualified review committee, N.C. Gen. Stat. § 131E-95 laid out the only three types of communication that would be protected from discovery: (1) the proceedings of the committee, (2) the records and materials the committee produces, and (3) the materials that the committee considers.  The Hammond Court highlighted the important, but often overlooked, clause of the same statute that reads, “…information, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee.”

While the importance of the privilege’s underlying public policy goal to promote safety in medicine is undeniable, the use of the privilege should not cease to go unchecked.

The Court declared that the Hammond defendants had not met this requirement, either, and quoted from the 2007 case of Hayes v. Premier Living, Inc. (pdf) in admonishing the tactic of sham assertion of privilege:

“This Court has ‘emphasize[d] that these are substantive, not formal, requirements.  Thus, in order to determine whether the peer review privilege applies, a court must consider the circumstances surrounding the actual preparation and use of the disputed documents involved in each particular case.  The title, description, or stated purpose attached to a document by its creator is not dispositive, nor can a party shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee.’”

Despite criticism that the medical review privilege has stepped beyond the fine line of garnering honest healthcare evaluations and a party’s legal right to full disclosure, the concept is likely here to stay.  The North Carolina Court of Appeals in Hammond paid homage to the notion that while the importance of the privilege’s underlying public policy goal to promote safety in medicine is undeniable, the use of the privilege should not cease to go unchecked.  Courts nationwide should look to the careful analysis of this recent decision, for it is only when a balance is struck between these two competing concepts that the “greater good” is truly served.

 

Katelyn Sally, Senior Staff Writer
About Katelyn Sally, Senior Staff Writer (9 Articles)
Katelyn Sally served as a Senior Staff Writer for the Campbell Law Observer. Katelyn is a graduate of University of North Carolina at Wilmington, where she majored in English and Political Science. After graduation she traveled to Torino to serve as an au pair for the family of an Italian judge for six months before coming to law school. She has worked at various private firms in the Wilmington and Charlotte areas, as well as Legal Services of NC. Katelyn also served as an intern at the Mecklenburg County District Attorney's office. She graduated from Campbell Law School in May 2014.
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