Medical Peer Review Privilege Protects Complaints Made to Physician Society’s Grievance Committee

A Texas appellate court upheld a physician’s peer review privilege claim by finding that a physician society’s grievance committee fell within Texas’ statutory definition of a “medical peer review committee.”  The court’s opinion contradicts decisions in other states by broadly interpreting the state’s peer review statute.  In re Higby, 2013 WL 4080716 (Tex. Ct. App. Aug. 13, 2013).

Interesting Fact Pattern

Higby presentsInterracial Medical Business Team Meeting in Boardroom an interesting fact pattern arising from a defamation action between two opposing medical expert witnesses.  Dr. Kenneth Higby is a maternal-fetal medicine specialist and Dr. Halbridge is an OBGYN.  Both are fellows in the American College of Obstetrics and Gynecology (ACOG).  In an underlying medical malpractice case involving a neurological injury to an infant, Higby provided an expert opinion for the defense and Halbridge provided an expert opinion for the plaintiff.

After the case settled, Higby filed a complaint with ACOG’s Grievance Committee claiming that Halbridge made false statements in his expert reports.  Halbridge responded with a defamation action against Higby and sought to discover Higby’s statements to the Grievance Committee.

Peer-Review Issue

The question before the court was whether the ACOG—a professional society—was a “medical peer review committee.”  If so, then the peer review privilege protects from discovery Higby’s statements to the committee.

Tex. Health & Safety Code Ann. § 161.0315(a) provides that “medical peer review” includes evaluation of “professional conduct.”  And § 151.002(a) states that a “medical peer review committee” includes a committee of a “health care entity” authorized to evaluate the quality of health care services, physicians’ “professional conduct,” and “the competence of physicians.”  This statute also defines “health care entity” to include a “professional society or association of physicians.”

The key here is that Higby’s statements did not concern the quality of Halbridge’s provision of medical care to a patient, but rather the quality of his expert opinions.  The court determined that Texas’s peer review statute covers statements made to committees that evaluate a physician’s competency and that Higby “essentially challenges Halbridge’s competence to render an expert opinion.”  Because the ACOG Grievance Committee evaluates professional conduct, it was a medical peer review committee under the statute and the peer review privilege protected Higby’s statements to the committee from discovery.

POP Analysis

Courts tend to take a narrow view of medical peer review privilege.  See this post, and this one, discussing example cases.  But the Higby decision represents a broad interpretation for two reasons: first, the privilege covered a professional society committee rather than simply a hospital peer review committee; and, second, it covered statements made about a physician’s expert opinions developed for litigation rather than his provision of heath care services.  While it is true that each state must interpret its own medical peer review statute, the Higby decision lends some support to those seeking a broad interpretation.