Ellison v. Women & Children’s Hospital of Buffalo, a malpractice case brought in the Western District of Pennsylvania against hospitals in Buffalo and Pennsylvania, is a case in which the parents of the plaintiff were seeking production of “a nurse’s handwritten notice relating to the medical care and treatment provided to a minor while he was being transferred between hospitals.” The District Court concluded that the note was not protected by the peer review privilege statutes of either state. The Pennsylvania hospital alleged that the note was part of “peer review proceedings.” The Pennsylvania Peer Review Protection Act provides, in relevant part:

“That proceedings and records of a review committee shall be held in confidence and shall not be subjected to discovery or introduction into evidence in any civil action against the professional health care provider arising out of the matters which are the subject of evaluation and review by such committee…”

The court held that there were no peer review proceedings initiated and that the nurse’s note more closely resembled an incident report or log prepared in the course of recording events in the treatment of a patient. The court concluded that this event does not represent the proceedings and records of a review committee. 

The facts were relatively easy, since no peer review committee or other peer review proceedings were ever initiated. One wonders what would have happened if the incident report had been prepared, but that it had later been used in a peer review proceeding. It is probable to conclude that incident reports themselves are not part of a peer review proceeding, and would not become protected by a peer review proceeding even if they were later used as such.