Medical Malpractice and Health Care Law Recent Development: North Carolina Court of Appeals Confirms Peer Review Privilege
In Estate of Ray v. Forgy and Grace Health Care System, Inc. et al., COA15-236, filed 16 February 2016, Roberts & Stevens’ attorneys Phillip Jackson and Ann-Patton Hornthal convinced the North Carolina Court of Appeals to reverse the trial court’s order denying the hospital’s assertion of the privilege for certain medical review committee documents pursuant to N.C. Gen Stat.§131E-95. The trial court had ordered the production of 161 of the 330 items the hospital claimed were covered by the privilege. Reversing, the Court of Appeals agreed that the hospital had met its burden of showing that (1) the hospital’s credentialing committee was established by the medical staff or hospital’s governing board; (2) “for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing;” and (3) the information for which the privilege was asserted was, in fact, records of the committee’s proceedings or records considered or produced by the credentials committee. Unlike prior cases decided by the Court of Appeals, the hospital defendant met its burden with a very specific affidavit from the hospital’s director of medical staff services. The affidavit explained the hospital’s medical review committee origination and purpose and included a detailed privilege log. For each of the 330 items withheld based on the privilege, the log included a description of each document, the author or source of each document, the date of the document, and the recipient of the document. Based on this information and following oral arguments, the Court of Appeals agreed that the hospital had established that the subject documents were, in fact, records and materials either produced or considered by the committee and protected from discovery under N.C. Gen Stat.§131E-95.
The work of medical review committees, including credentialing committees, remains a very important tool in improving the quality of patient care. The protection afforded the records and proceedings of these committees under North Carolina law is a vital component in maintaining the integrity of the system. The opinion in Estate of Ray v. Forgy, et al., underscores the need for hospitals to remain vigilant in assuring that their peer review bodies are properly organized and formed and that the information discussed among or reviewed by the members of those bodies remains confidential.