Legal Privilege for Medical Care Review Committees

Medical staff review committees have a special legal status. The legislatures and courts of most states have decided that it is important that these committees be able to investigate freely physician behavior. To this end, the reports and business information of such review committees are often unavailable for discovery in a lawsuit against the physician who was investigated. (It is not clear whether these reports, such as tissue committee reports, would be available in a lawsuit against the hospital for negligently allowing the physician to have privileges at the facility.)

As noted in the chapter on hospital liability, the hospital (through its board) is charged with ensuring that the medical staff is competent. This duty is usually delegated to the various medical staff review committees. The role of these committees is to make recommendations to the board concerning the discipline of medical staff members. The final authority for a disciplinary action rests with the board, although it would be expected that the board would carry out the recommendations of the medical staff committees.

The problem arises when the committee members do not report physician wrongdoing to the board. Can the board (and thus the hospital) be charged with the knowledge of the medical staff committees if the committees choose not to report such knowledge to the board? It is uniformly accepted that the power of all hospital committees derives from the board. It is also accepted that the board is ultimately responsible for all actions of personnel under its control. If the board could delegate part of its review duties to a committee yet not be responsible if that committee was guilty of dereliction of its delegated duties, the board would be able to escape some of its required duties. For this reason, it is expected that the courts will attribute committee knowledge to the board. In this situation, a plaintiff could sue the hospital for negligence in carrying out its duty to monitor the competence of the medical staff. In defense, the hospital must allege either that it did not know that the negligent physician was incompetent. The issue would be the hospital's knowledge, which would be documented in the review committee reports and minutes.

Even if review committee records were not available in a suit against a physician, it is reasonable to believe that they would be discoverable in a lawsuit against the hospital. the public policy issue of encouraging investigations of individual physicians (resulting in secret records) would be supplanted by the need to make the hospital responsible for seeing that the committee is doing its job. In both cases, the desired result is increased activity of the committee. In the second case, however, the availability of the records of the committee's actions should encourage the committee to carry out its duties.

Medical staff committees do not owe a duty directly to the patient. A patient could sue the hospital for not properly overseeing its committees, but the patient could not sue the committee members directly. The hospital could, in theory, sue the members of the medical staff committee for negligence in carrying out the duty that they owed the hospital. While it is extremely unlikely that a hospital would sue members of its own medical staff, there could be an action against the committee members for not recommending disciplinary action against a member of the medical staff whom they knew to be incompetent. This type of suit is more likely when the hospital is controlled by a group that must be responsive to stockholder interests, or when a third party, such as a trustee in bankruptcy, is in control of the institution.

The hospital board must develop a mechanism to monitor the performance of the staff committees. Data from the incident reports should be correlated with the actions of the medical staff review committees. It is not necessary, or even desirable, for all incidents to result in committee action. All incidents involving medical staff members must, however, be discussed in the minutes of the appropriate committee. This provides a record of the disposition of the incidents. The action the committee takes in regard to a staff member involves expert evaluation requiring medical knowledge. The legal grounds for challenging the decisions made by the committee are complex and difficult for the plaintiff to establish. It is very easy to establish that the committee ignored the incidents if there is no record of them in the committee minutes.

Medical review committee records have assumed greater importance in the hospital accrediting process since the promulgation of the JCAH regulations on quality assurance. These regulations require that a systematic effort be made to monitor the quality of medical care in the hospital. In determining compliance with this regulation, JCAH inspectors are now asking to see both the hospital's plan for complying with the quality assurance regulations and the minutes of the various hospital committees.

Medical review committee reports can be discoverable in two circumstances. The first circumstance arises in some states that do not recognize hospital committee minutes as privileged. In these states there is nothing to prevent an attorney who is suing the hospital from subpoenaing such records. If the lawsuit is based on a failure to screen medical staff appointments or to monitor the competence of medical staff members, the minutes will be useful evidence as to whether the defendant hospital carried out its duties.

The second circumstance arises in states that recognize the minutes as privileged and do not give an attorney who is suing the hospital access to the records. However, even in such states, the hospital may have to produce the records in its defense. This will happen if the patient's attorney brings a lawsuit based on the hospital's failure to supervise the medical staff's performance. The patient's attorney may provide evidence of the physician's misconduct. The attorney may also allege that the hospital breached its duty to the patient by not properly investigating the incident or by not taking proper disciplinary action against the physician. The hospital must refute these charges by introducing what it feels are the relevant committee reports and minutes into evidence. Once the hospital is forced to rely on some of the minutes to defend its case, the opposing attorney is entitled to examine all the records and introduce others into evidence.