Josh Gajer Explains Why Discussions on Patient Care Could Become Discoverable
If a group of EPs want to discuss a case as part of a peer review process, they probably assume that discussion is protected from discovery during litigation. In fact, states vary widely in this regard, with gaps in peer review protections.
In a Relias Media article, Counsel Josh Gajer weighs in, saying that as a general rule, peer review protections only apply if the state where the provider practices has a peer review statute on the books, the information at issue was exchanged in formal compliance with the technical requirements of the applicable statute, and the purpose of the discussion was to improve future outcomes (not to manage risk related to a prior bad outcome).
According to Josh, peer review protections must strike the right balance between the plaintiff's right to discover information and the need for providers to openly discuss care without fearing legal repercussions. "What good are quality improvement efforts if you cannot share the learnings from past mistakes with other members of the institution without risking waiver of applicable privileges?"
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