Miller v. Huron Reg’l Med. Ctr – Summary

PEER REVIEW

Miller v. Huron Reg’l Med. Ctr., No. CIV. 12-4138 (D. S.D. Dec. 20, 2013)

The United States District Court for the District of South Dakota held that a defendant hospital’s medical malpractice insurance carrier, which hired a physician-reviewer to conduct an external review of a plaintiff-physician, was required to produce the physician-reviewer’s report to the plaintiff-physician.

The plaintiff-physician wanted the hospital to produce the report, as well as the physician-reviewer’s time line notes and notes the claims representative made when discussing the review with the physician-reviewer.  The insurance carrier argued that the notes are protected by the state peer review privilege.

The court held that under the state peer review law, peer review proceedings are not subject to discovery, but that prohibition does not apply “to deny a physician access to or use of information upon which a decision regarding the person’s staff privileges or employment was based.”  The court also found that a privilege can be waived if the party that asserts the privilege puts in issue information protected by the privilege, which the hospital did in this case.  Finally, the court found that the privilege may be waived when invoked in an unfair way, such as using it as a shield and dagger, which the hospital did here.