Arizona Court of Appeals Defends the Integrity of Peer Review Privileged Information & Documents

August 26, 2021 By Gust Rosenfeld In Legal Alerts

Recently the Arizona Court of Appeals reiterated that the overriding public interest in hospital peer review proceedings prohibits fishing expeditions into those proceedings. In Takieh v O’Meara, 1 CA-CV 20-0290, the plaintiff wanted a hospital to produce emails related to a particular doctor’s peer review proceedings, or at least a privilege log describing documents which it deemed privileged.

The Court of Appeals held that if the hospital deems all requested documents as peer-review privileged, no privilege log is necessary because the log may reveal the deliberative process. It cited a prior Court of Appeals case, stressing that no in camera review should be undertaken to test the privilege of each alleged peer-review document. All are protected, privileged, and confidential.

The defense bar in Pima County has been experiencing a number of plaintiffs’ motions in medical malpractice cases requesting that courts permit them to obtain peer review details and documents, which have historically been treated as protected, privileged, and confidential.

While states vary in how they handle the statutorily-created peer review privilege, the case law in Arizona suggests that narrowing the privilege is inconsistent with public policy favoring peer review and quality assurance privileges.

Hospital peer review process reviews the care that their staff physicians provide as part of quality assurance practices. Arizona has statutes that protect as confidential the names of individuals, documents, and the deliberative processes surrounding these activities. Confidentiality is necessary to achieve the candor needed to investigate and to review medical care for the purpose of improving processes and reducing medical complications. Peer review activities would be substantially compromised if the contents of these proceedings were discoverable in lawsuits.

For more information or questions, please contact any of our Health Care law attorneys listed below.

Peter Collins, Jr.

Frederick M. Cummings

James W. Kaucher

Jeffrey L. McLerran

Melissa S. San Angelo

J.T. Shoaf

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