QUESTION:
A plaintiff in a malpractice lawsuit has requested a physician’s credentialing file. Can a hospital refuse to produce the entire file based on peer review privilege?

ANSWER FROM HORTYSPRINGER ATTORNEY FISHER FILIPPAZZO:
Generally, no.  Hospitals should not assume that an entire credentialing file is protected from discovery simply because it was maintained or reviewed as part of the credentialing process.

Depending on the applicable state law, peer review privilege may protect committee deliberations, recommendations, evaluations, and other materials generated as part of the credentialing or peer review process. However, underlying source documents may be treated differently. Placing an otherwise discoverable document in a credentialing file does not necessarily make that document privileged.

Materials, such as credentialing committee minutes, evaluations, recommendations, or OPPE reports prepared specifically for use in the peer review or reappointment process, may be protected by the state’s peer review privilege. Whether those materials are privileged will depend on the applicable state law and the circumstances under which they were created and used.

Hospitals should also consider whether particular documents are protected on grounds separate from the peer review privilege. For example, information obtained from the NPDB is subject to separate federal confidentiality requirements. See 45 C.F.R. § 60.20.  Those protections do not, however, independently protect information contained in the hospital’s own records merely because that information was also reported to the NPDB.

In summary, while some portions of a credentialing file may be privileged, others may not be. Hospitals should avoid applying a blanket privilege determination to the entire file, as doing so may result in either over-disclosure or under-disclosure of information. Instead, the file should be reviewed on a document-by-document basis, taking into account applicable state law, hospital policies and procedures, and the purpose for which each document was created and used.

If you have a quick question about this, e-mail us at info@hortyspringer.com.