Question: Our hospital is in a state with a very weak peer review privilege.  We are looking for ways to better protect our peer review information and thought that the federal Patient Safety and Quality Improvement Act (“Patient Safety Act”) could assist us in achieving this goal.  Is this possible?

Answer: Yes.  The Patient Safety Act can be used to protect peer review information.  The confidentiality and privilege protections under the Patient Safety Act are extremely strong and in most cases exceed those available under traditional state peer review privileges.  The preamble to the proposed regulations for the Patient Safety Act instructs that the protection of peer review information is one of the specific purposes of the Patient Safety Act.  The preamble provides as follows:

Traditional state-based legal protections for such health care quality improvement activities, collectively known as peer review protections, are limited in scope:  They do not exist in all States; typically they only apply to peer review in hospitals and do not cover other health care settings, and seldom enable health care systems to pool data or share experiences between facilities.  If peer review protected information is transmitted outside an individual hospital, the peer review privilege for that information is generally considered to be waived….  [T]he Patient Safety Act specifically addresses a number of these long-recognized impediments to improving the quality, safety, and outcome of health care services.

Thus, the Patient Safety Act not only considers peer review information to be within the scope of its protections, it also seeks to broaden the protections available under state laws by allowing for the sharing of peer review information between hospitals and affiliated entities (e.g., physician group practices) and eliminating the ability of a provider to “waive” the privilege and confidentiality protections under the law.

However, once a hospital reports peer review information to a Patient Safety Organization under the Patient Safety Act, it is difficult to retrieve in identifiable form the information and then use the information for other purposes.  Consequently, if a hospital needs peer review information to conduct a medical staff hearing, appeal, or investigation and has already reported the information to a Patient Safety Organization, it will be hard to access.

But, the regulations for the Patient Safety Act anticipated this situation and allow providers to maintain information in a Patient Safety Evaluation System before reporting the peer review information to the Patient Safety Organization.  Information maintained in a Patient Safety Evaluation System is subject to the same strong privilege and confidentiality protections that apply to information reported to Patient Safety Organizations.  The only difference is that information held in a Patient Safety Evaluation System can be removed easily to be used for other purposes, such as to satisfy external reporting requirements or for conducting medical staff hearings and appeals (once the information is removed from the Patient Safety Evaluation System, it is no longer subject to the protections under the Patient Safety Act).  The key is to have a well-defined Patient Safety Evaluation System that provides guidelines for when the hospital will report peer review information from its Patient Safety Evaluation System to the Patient Safety Organization.

To learn more about protecting peer review information under the Patient Safety and Quality Improvement Act, join Horty, Springer & Mattern attorneys Henry Casale, Rachel Remaley, and Charlie Chulack for the Institute on Employed Physicians and Their Impact on the Medical Staff in Chicago from October 3 through October 5, 2013.