No Committee of One: Court Rejects Privilege for Peer Review Conducted by Lone Physician 1

A Connecticut court rejected a peer-review privilege claim because a solo physician conducted the peer review rather than a “medical review committee.”  And this ruling came despite the fact that the hospital’s bylaws defined “medical review committee” to include a single physician.  Cox v. Reyes–D’Arcy, 2013 WL 2451303 (Conn. Super. Ct. May 15, 2013).

The Cox ruling represents an extremely narrow and strict reading of Connecticut’s peer review statute.  That statute protects as privileged the proceedings of a “medical review committee conducting a peer review.”  Conn. Gen. Stat. §19a–17b(ddoctorwithpatientfolder).  And the statute defines “medical review committee” as including “a committee of any health care institution established pursuant to written bylaws.”  Id.

Following allegations that a pathologist at a New London hospital failed to answer an urgent call to read a blood smear slide, the hospital’s Pathology Department Chair conducted a peer review investigation.  The hospital’s bylaws provided that its medical review committee included a department chair acting in a peer review function.  In subsequent litigation, the pathologist sought in discovery the peer review findings.  The hospital objected citing Connecticut’ peer review privilege.

The court ruled that, as with any privilege claim, it must narrowly construe the peer review privilege statute. And in doing so, it defined the statute’s phrase “medical review committee” as a “group of people delegated to perform a particular task.”  And because the Department Chair conducted the peer review solo, rather than as part of a “group,” the court held that no “medical review committee” existed to which the privilege applied.

This narrow interpretation came even though the statute defines a “medical review committee” as one established pursuant to hospital bylaws and the hospital here defined the committee as including a lone department chair.  To this, the court found that the bylaws “overreach the privilege.”

PoP Analysis.  Evidentiary privileges run counter to the maxim, first coined in 1742 by Lord Chancellor Hardwicke, that the public has a right to “every man’s evidence.”  Thus, the Cox decision presents another example of courts narrowly construing evidentiary privileges.  Knowing this tendency, the practical lesson here is that health care providers and institutions that engage in peer review proceedings must ensure that the bodies created to conduct the proceedings match precisely the peer-review statute’s wording.  Perhaps it is time for a triage of your state’s peer review statute and your healthcare client’s peer review procedures?