Peer Review: Can the Board of Medical Practice Subpoena Files?

By: LORA M. FRIEDEMANN & DAVID P. BUNDE

February 2004

Co-authored with Margo S. Struthers, Kari L. Wraspir, and Rebecca Egge Moos

Your institution receives a subpoena from the Board of Medical Practice. The subpoena seeks peer review records and credentialing files pertaining to Dr. X. Do you have to turn over the records? If the peer review privilege applies, the Minnesota Court of Appeals recently held that you do not.

For years, a tension has existed between the Board of Medical Practice and health care institutions. When the Complaint Review Committee of the Minnesota Board of Medical Practice commences an investigation of a physician, it often sends subpoenas to the health care institutions within which the physician practices. The subpoenas commonly seek documents contained in credentialing and peer review files. Many health care institutions have resisted the subpoenas under a Minnesota statute that makes information confidential if it is acquired by a peer review committee. Other institutions have complied with the subpoenas, and provided confidential peer review files to the Board. Until recently, the courts had not addressed whether the Board has the legal right to demand peer review files.

The Minnesota Court of Appeals finally had opportunity to consider the issue when the Board sent subpoenas to several health care institutions for a proceeding against a physician. Through the subpoenas, the Board sought information about the physician from peer review and credentialing files. Three hospitals and an HMO (hereafter the “Providers”) challenged the subpoenas. The Providers asked the court to quash the subpoenas because they sought information protected under the peer review privilege. Two years later, the case made it to the Minnesota Court of Appeals, and resulted in a landmark ruling.¹

Origins of the Peer Review Privilege

When responding to a subpoena, relevant evidence must be disclosed unless it is privileged. Most health care providers are familiar with the physician-patient privilege. The peer review privilege is similar, except that it protects communications that occur in connection with peer review instead of communications between doctors and patients.

Confidentiality for peer review activities became the law in Minnesota in 1971. During that year, the Minnesota Legislature enacted a statute that says: “All data and information acquired by a [peer] review organization . . ., shall be held in confidence, and shall not be subject to subpoena or discovery.”² The purpose of the statute is to increase the quality of medical care by encouraging the frank exchange of information among physicians.

Most states have a similar statute, although many are narrower than Minnesota’s. For example, some states specifically allow licensing boards to obtain information from peer review files. Other states limit the scope of the privilege to “civil actions” or malpractice cases. Minnesota’s statute is broader; it protects “all data and information” a peer review committee acquires from subpoena or discovery. The Legislature did not make any exception for the Board.

The Arguments

Despite the breadth of Minnesota’s peer review statute, the Board has consistently sought information from peer review files. In the Court of Appeals case, both sides presented several arguments concerning the Board’s ability to subpoena this information.

The Board argued that it needs access to peer review files to assure that the physicians practicing in Minnesota are competent professionals. Without peer review information, the Board argued that health care institutions would be able to bury evidence of potential practice issues, and that its investigations would be hampered. The Board also asserted that the peer review statute does not apply to administrative actions before a professional licensing board. Lastly, the Board claimed that the peer review privilege protects only documents a peer review committee “generates,” not documents the committee “acquires.” Under this argument, the peer review privilege would not cover documents a peer review committee gathered from another source, such as medical records or patient complaints.

The Providers pointed out that the language of the statute is absolute, and does not create an exception for the Board. Moreover, confidentiality is essential if peer review is to function effectively. If the Board can subpoena peer review files, physicians will be less likely to engage in the open and honest exchange the statute is intended to foster. The Providers also argued that reporting obligations under Minnesota and federal law provide sufficient information for the Board to assure that the physicians are competent professionals. The MMA, MHHP and AMA submitted a “friend of the court” brief joining in the Providers’ arguments and emphasizing the importance of confidentiality.

The Decision

The Court of Appeals sided with the Providers. The court relied on the language of the peer review statute and held that the protection for peer review files applies to all types of subpoenas, including those issued in administrative proceedings initiated by the Board. In the court’s view, the Legislature weighed the competing policy considerations when it enacted the peer review statute, and decided that all data and information a peer review committee acquires is protected from subpoena or discovery. If the Board wants a change in the law, the court held that the Board must approach the Legislature. The court also rejected the Board’s argument that the protection for peer review files includes only those documents the committee “generates.”

In summary, the court declared:

The confidentiality provision of the peer review statute applies to subpoenas issued by the Board. The confidentiality provision encompasses all documents contained in [peer] review organization files, including documents a [peer] review organization obtains from other sources.

The Board chose not to seek review of the decision in the Minnesota Supreme Court.

Significance

The Court of Appeals decision is significant for two reasons. First, the decision establishes the rights of health care providers and the Board with respect to peer review files, and confirms that a Board subpoena does not override the peer review privilege. Thus, if the privilege applies, a health care institution is under no obligation to supply information from its peer review files to the Board. In fact, an institution could run afoul of the statute’s penalty provision if it provides privileged information to the Board. Under the statute, it is a criminal misdemeanor to disclose confidential information about peer review proceedings. The one exception to this provision permits a peer review organization to disclose information “to the extent necessary to carry out one or more purposes of a review organization.” If this exception applies, the committee may choose to disclose confidential information if it will further the purposes of a peer review organization.

Second, the decision clarifies the scope of the privilege. The decision establishes that all information a peer review organization “acquires” is protected, not simply the information it “generates.” This distinction is critical in assuring that the Board and private litigants cannot gain information about peer review activities by learning what records the committee reviewed. Oftentimes, peer review committees analyze complaints and medical records. These documents are “acquired” by the committee, but are not “generated” within the committee. The decision establishes that copies of these records cannot be obtained from peer review files. Although the Board can obtain medical records and complaints from other sources, absent an applicable reporting obligation under state law the Board is not entitled to learn what medical records and patient complaints a peer review committee reviewed.

The Board will, no doubt, continue to issue subpoenas. If your institution receives a Board subpoena, the Court of Appeals’ decision places you on solid ground if you refuse to produce peer review records, as long as the records are truly covered by the peer review statute. To be covered, your institution’s peer review committee must meet certain criteria and the committee’s activities must be treated as confidential.

Conclusion

The peer review statute protects against the disclosure of materials acquired by peer review committees – including disclosure to the Board. If your institution receives a subpoena, the Court of Appeals has held that you are not required to provide information contained in the files of a qualified peer review organization.

References

1. The court’s decision is entitled In re the matter of the Petition of Fairview-University Health Care to Quash Subpoena of Administrative Law Judge, 590 N.W.2d 150 (Minn. Ct. App. 1999).
2. Minnesota Statute § 145.64.