Physician credentialing disputes often involve and may depend upon proof of “unequal treatment.” These situations arise when hospitals allege certain substandard performance or conduct by physicians, but the physician’s defense is that they are no different than anyone of the physicians, that the issues are common and that they are being discriminated against. In order to prove that, you have to prove similar circumstances but unequal treatment, which requires the discovery of the peer review records of other physicians.
Most states have peer review confidentiality statutes prohibiting the discovery of that information, at least for malpractice cases against physicians and for any circumstances in many statutes. Although there appears to be a growing recognition that the confidentiality statutes do not apply to a physician who seeks access to his own peer review records, obtaining other peer review records is usually difficult, although there are some exceptions.
One common exception is for discrimination cases based upon federal law. Another example of this exception is Guinn v. Mt. Carmel Hospital, a federal district court case from the Southern District of Ohio. Dr. Guinn alleged violation of Federal Statutes 42 U.S.C. 1981 and 1985, and sought discovery of the peer review records of other physicians. The hospital objected on the basis of the state peer review confidentiality statutes and the common law physician/patient privilege. Dr. Guinn moved to compel discovery.
The court recognized that the law in the Sixth Circuit was well established that the privileges asserted by the hospital do not exist in these federal court discrimination cases. However, the court also concluded that Dr. Guinn had not proved the relevance of most of his discovery requests.
Note that the discovery and confidentiality issue is not an HCQIA issue. The Health Care Quality Improvement Act not only does not address the confidentiality of physician peer review records, the immunity granted by the statute is not available in the employment discrimination context.
Another recent case was Ryskin v. Banner Health, decided in the District Court for the United States District of Colorado. In that case the court refused to limit the disclosure of peer review records because, although Colorado does have a state peer review confidentiality statute, the statute provides confidentiality in peer review proceedings and defines what constitutes a peer review proceeding.
The court concluded that the hospital had not followed the policies it adopted defining peer review proceedings and therefore could not claim that its investigation constituted a valid peer review proceeding. The court stated compliance with the statutory procedural requirements was a prerequisite to asserting the privileges provided by the statute.