The Cleveland Clinic Foundation was sued in a medical malpractice action which alleged that an employed neurosurgeon's misdiagnosis of the plaintiff's back condition and surgical negligence resulted in permanent paralysis from the waist down in addition to severe and persistent pain. During discovery, the plaintiff moved to compel the Clinic to produce documents relating to "any intent or desire to motivate the neurology staff to improve patient access, increase time slots, recapture market share, counter loss of patient volume to competitors, or otherwise increase revenues and/or numbers of patients."

The Clinic argued that these documents were protected from discovery under the Ohio peer review statute and the Ohio Uniform Trade Secrets Act. The documents were produced to the trial court for in camera inspection. After reviewing the materials the court rejected the Clinic's arguments and ordered that the documents be produced. The Clinic appealed. 

Every state has a peer review statute. Almost all of them require that only information intended to improve patient care, reduce risk or involve quality review or improvement activities are privileged but that these efforts must take place within a defined peer review committee consistent with the statutory language. As determined by the Ohio Court of Appeals, and noted below, the Clinic's only evidence to support its argument was an affidavit which failed to satisfy its burden of establishing that the statutory peer review privilege applied to the documents in dispute. The Court reached the same conclusion in holding that the same affidavit, with it lack of factual details and conclusory statements failed to establish compliance with the Trade Secrets Act. 

Lessons Learned

1. Courts are not predisposed to apply privilege statutes and will require strict compliance with the statutory provisions and applicable case law. The burden of proof is on the proponent of the privilege. 

2. The goal of legal counsel is to educate the court and to support privilege assertions through detailed affidavits, redacted documents; copies of peer review forms, explanations as to the process and procedures in collecting and utilizing the privileged information in furthering the intended statutory purpose, i.e., improving patient care and reducing risk, and for state statutes, that the information was created or utilized by a peer review committee. 

3. It is strongly recommended that hospitals and other health care providers form or join a federally certified Patient Safety Organization (PSO) which provides much broader privilege protections under the Patient Safety and Quality Improvement Act of 2005 (PSQIA). One of the important differences between the PSQIA protections and state laws is that privileged information does not have to flow through or be created by a defined committee. In addition, the PSQIA also covers all licensed providers, the privilege applies in all state and federal proceedings and the privilege can never be waived.