Credentialing file isn’t protected by peer-review privilege

The Board of Registration in Medicine may be entitled to look at certain documents in a doctor’s hospital credentialing file even though it hasn’t begun formal disciplinary proceedings against the doctor.

That’s the result of a new decision from the Massachusetts Supreme Judicial Court.

The Board is not entitled to see “core” peer-review documents, such as proceedings, reports and records, without filing a formal proceeding. However, it’s entitled to subpoena “less central” documents, the court said.

These might include applications for reappointment to the hospital staff, insurance information (including malpractice claims), licensing information, controlled substances certifications, and professional references and evaluations.

In this case the Board was investigating a doctor for allegedly omitting a criminal charge on his license renewal application and practicing while impaired by alcohol or drugs. When it subpoenaed the information in the credentialing file from Hallmark Health Corporation, Hallmark refused to comply on the grounds that the documents were protected by the peer-review privilege.

But according to the court, only “core” peer-review documents, such as proceedings, reports and records, can be withheld from the Board prior to a formal proceeding. Other documents must be produced if they are “less central” to peer review.

The court sent the case back to a trial judge to decide which specific documents in the file were “core” and which were “less central.”

‘There will be a lot of fights’

Some lawyers and doctors are concerned that the court’s ruling will create a great deal of uncertainty about what documents are privileged.

“Anytime there are inroads being made into privileged materials, there is always the fear of a slippery slope,” said William S. Eggeling of Ropes & Gray in Boston. “If the lawyer says the line is gray, which they really have to say at this point, then the question of how to guide [a medical provider client] becomes much harder because it’s not perfectly clear what can and can’t be done.”

“I think there will be a lot of fights in the next few months as a result of this decision over whether a particular document is covered,” added Dean P. Nicastro of Pierce & Mandell in Boston, who co-authored an amicus brief in support of Hallmark.

Nicastro said that the burden will be on hospitals to make sure documents are generated by a properly structured medical peer-review committee process in order to protect them.

But Max Borten, a medical-malpractice plaintiffs’ lawyer and a physician, praised the ruling and said he believes it will curb medical providers who have been “trying to expand peer review to things the statute never intended to be covered.”

According to Borten, who practices at Gorovitz & Borten in Waltham, “the SJC is going to look very carefully at the statute and not buy wholesale arguments that peer review protects every document ever created and ever given to a hospital.”

Borten contended that concerns that the decision will erode the genuine peer-review privilege are “baloney.” He notes that the decision only applies to the Board, and will not affect public or plaintiffs’ attorneys’ access to documents.

Questions or comments should be directed to the writer at: david.frank@lawyersweekly.com