Physician’s Post-Op Comments Not Protected by Peer-Review Privilege 1

An Illinois Appellate Court recently ruled that a physician’s post-operation comments to the Medical Affairs Diretor were not protected by the medical peer-review privilege.  The Court issued this ruling despite the fact that the physician making the comments later participated in formal peer-review committee meetings.  See Tunca v. Painter, 980 N.E.2d 1132 (Ill. App. Ct. 2012).

The peer-review privilege in Tunca arose in an atypical case-setting.   Plaintiff Dr. Tunca, a surgeon specializing in gynecological oncology, cut a patient’s femoral artery during surgerMedical teamy to remove an ovarian tumor.  Defendant Dr. Painter, a vascular surgeon, later repaired the cut by performing a femoral-femoral bypass.  After the surgery, Dr. Painter informed the Medical Affairs Director that Dr. Tunca had negligently and inadvertently severed the patient’s artery during the first operation.  Dr. Painter later made similar comments to other medical staff.  These comments were made in June 2006, and the hospital’s peer-review committee reviewed the incident in February 2007.

Illinois’ peer-review statute provides that “all information, interviews, reports, statements,” etc. are “privileged and strictly confidential.”  735 Ill. Comp. Stat. 5/8-2101.  Dr. Tunca sued Dr. Painter alleging that Painter’s comments were slanderous and violated Illinois’ peer-review statute.  The appellate court, however, held that Dr. Painter’s post-operation comments were not protected by the peer-review statute.  The court narrowly interpreted the statute to protect from compelled disclosure only those statements made while a committee is actually engaged in the peer-review process.  Statements made before the peer-review process begins or after it ends fall outside the peer-review privilege.

The court reiterated that information obtained after a medical incident but before the peer-review process formally begins is not privileged; nor does this information transform into privileged material when it is later reported to a peer-review committee.  Even statements made in anticipation of a peer-review process are not covered.  Simply put, the peer-review privilege does not protect letters, emails, declarations, and statements made before the peer-review process formally begins.

PoP Analysis.  Even though the Tunca case arose in a defamation setting, it contains lessons for in-house and outside counsel representing medical providers in malpractice settings.  This case follows so many other decisions that narrowly interpret privilege rules and statutes.  Physicians routinely discuss post-incident information for purposes of learning what occurred and preventing repeat incidents, which is the same goal as the peer-review process.  Yet, these statements are not privileged unless made after formal institution of medical peer-review proceedings.  Counsel should endeavor to train physicians and medical staff regarding how to handle post-incident comments and discussions.  While not all states follow Illinois’ strict statutory construction, the Tunca case should serve as caution in all peer-review situations.