Rowen v. Gonenne — Nov. 2015 (Summary)

PEER REVIEW PRIVILEGE

Rowen v. Gonenne
No. 161021046; A149358 (Or. Ct. App. Nov. 12, 2015)

A patient and his wife sued a gastroenterologist, his professional corporation, and a surgical facility for malpractice after the patient suffered serious complications after a routine colonoscopy revealed polyps, which were removed and resulted in massive bleeding. The crux of the lawsuit was that the patient’s bleeding was caused by the gastroenterologist’s failure to advise him to stop taking blood thinners in advance of the procedure. In fact, the gastroenterologist’s decision not to require discontinuation of blood thinners prior to a routine colonoscopy was consistent with the surgical center’s policy and was based, at least in part, on the results of a benchmarking study of post-polypectomy bleeding in which the surgical center had participated. At trial, the jury found for the gastroenterologist. The patient and his wife appealed.

Among other things, the patient argued that the benchmarking study should not have been admitted into evidence because it was privileged pursuant to the state peer review statutes. The court of appeals disagreed, holding that although the study was delivered to the peer review body of the surgery center, it was not privileged under the state peer review statute because it was not “prepared for” the peer review body. The court of appeals was not persuaded that a notation on the report indicating the study had been “Discussed at the Quality Management Committee” demonstrated the study was prepared for the peer review body.

The court of appeals also held that the trial court appropriately denied the patient the ability to cross-examine the gastroenterologist on a research report that was published after the patient’s procedure, finding that even though the report could have impeached the gastroenterologist by suggesting he was not knowledgeable about recent research, introduction of the report would run the risk of misleading the jury into thinking that the gastroenterologist’s conduct should have been informed by the report – which was not available to the gastroenterologist at the time of the patient’s procedure.