QUESTION:
Can medical staff peer review or quality information be shared with the hospital’s affiliated employed physician group?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
It depends. All too often the reflexive answer to this question is “No way!  We’ll waive the privilege.”  But that’s not always the case.  In some situations, failing to share information within a hospital or health system could result in liability or even put patients in danger.  While each situation is different, each state’s law is unique and the facts and circumstances of a particular request will dictate the outcome, here are a few questions that might be helpful in analyzing whether sharing information could jeopardize the peer review privilege and the pros and cons of doing so.

• What are you sharing?

o          Is it covered by the statute/privilege in the first place?

• Who are you sharing it with?

o          Is the recipient organization entitled to the privilege or statutory protection?

• What is it going to be used for?

o          E.g., Does the statute limit the use of the information to “peer review purposes”?

• Does the peer review protection statute in question address waivers?

• Do court cases in your state address waivers?

• Does the peer review protection statute just confer a privilege or is there a statutory mandate of confidentiality?

There’s no one answer and a deeper analysis is always a good idea.  But hopefully this simple algorithm will help guide that process.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.