Harrison v. Munson Healthcare, Inc. (Summary)

PEER REVIEW PRIVILEGE

Harrison v. Munson Healthcare, Inc., Nos. 304512, 304539 (Mich. Ct. App. Jan. 30, 2014)

The Court of Appeals of Michigan affirmed in part a lower court’s holding that sanctions against a hospital and its attorney were appropriate, finding that a defense inconsistent with known but non-disclosed facts was presented during discovery and trial after a patient sued the hospital.  The patient had undergone thyroid surgery at the hospital, during which a cauterizing device had burned her arm.  During discovery and trial, the hospital claimed that no one in the operating room remembered how the patient’s arm was burned and no one was interviewed after the incident.  The hospital maintained that it was the hospital’s practice to always return the cauterizing device to its holster during surgery, asserting that the burn must have been an accident caused by the accidental “unholstering” of the device.  However, the hospital’s operating room manager had sent a letter to the patient about the incident and later testified that she would have interviewed operating room staff before sending the letter.  As such, the lower court had ordered the hospital to produce incident reports about the incident.  The report produced, which the hospital claimed was peer review protected and had not been provided to the patient as part of the discovery process, stated that the cauterizing device was laid on the surgical drape during surgery and the surgeon leaned against the patient at the device site.  Further, the device holder was on site but the device was not in the holder.

The court found that the incident report was only partially protected as a peer review document, reasoning that it did not fully meet the definition of peer review documents under state law, and thus the observations about the device being laid on the surgical drape were not privileged. Specifically, the court noted that the initial page of the incident report, which included the operating room staff member’s contemporaneous observations of the existing facts in the operating room at the time the burn was discovered, was not privileged; however, the remaining portion of the incident report that detailed the actual review process followed by the operating room manager was privileged as it reflected a deliberative review process.  The court also held that sanctions against the hospital and its legal counsel were appropriate because the hospital had prevented the patient’s “search for truth throughout discovery,” stressing that a portion of a report being privileged does not give the hospital the right to impede the discovery process and to maintain a defense that was inconsistent with known but non-disclosed facts.