Two recent decisions emphasize the ongoing battle for discovery of peer review information in negligence cases, and confirm that confidentiality is alive and well, but no longer automatic. 

In Shell v. Sudan, the United States District Court for the District of Nebraska ordered that deposition questions regarding a hospital risk analysis tool were not precluded by the state peer review privilege. The Court ruled that a process called Failure Modes and Effects Analysis (FMEA) was a prospective analysis tool and concluded that prospective analysis for avoiding future problems did not constitute retrospective analysis of actual peer review events, and was therefore not protected from discovery.

Conversely, the United States District Court for the Eastern District of Michigan ruled in William Beaumont Hospital v. Medtronic Inc. that Medtronic was not entitled to the incident reports, or variance reports, arising out of a patient adverse event. In this case, the hospital entered into a settlement with a patient who was overdosed using a medical device, and the hospital then sought contribution from Medtronic alleging Medtronic’s negligence in providing medical devices. The Court concluded, even though the hospital was seeking recovery from Medtronic, the hospital had not waived any privilege under state law and the specific documents sought by Medtronic were covered by the state peer review confidentiality privilege. The Court further concluded that Medtronic had alternative means of obtaining the information it desired in order to appropriately and reasonably defend its position.