Section 513. Medical
Peer Review Privilege
(1) As used in this section,
“medical peer review committee” is a committee of a State or local professional
society of health care providers, including doctors of chiropractic, or of a
medical staff of a public hospital or licensed hospital or nursing home or
health maintenance organization organized under G. L. c. 176G,
provided the medical staff operates pursuant to written bylaws that have been
approved by the governing board of the hospital or nursing home or health
maintenance organization or a committee of physicians established pursuant to Section 12
of G. L. c. 111C for the purposes set forth in G. L. c. 111,
§ 203(f), which committee has as its function the evaluation or
improvement of the quality of health care rendered by providers of health care
services, the determination whether health care services were performed in
compliance with the applicable standards of care, the determination whether the
cost of health care services were performed in compliance with the applicable
standards of care, determination whether the cost of the health care services
rendered was considered reasonable by the providers of health services in the area, the determination of whether a
health care provider’s actions call into question such health care provider’s
fitness to provide health care services, or the evaluation and assistance of health
care providers impaired or allegedly impaired by reason of alcohol, drugs,
physical disability, mental instability, or otherwise; provided, however, that
for purposes of Sections 203 and 204 of G. L. c. 111, a
nonprofit corporation, the sole voting member of which is a professional
society having as members persons who are licensed to practice medicine, shall
be considered a medical peer review committee; provided, further, that its
primary purpose is the evaluation and assistance of health care providers
impaired or allegedly impaired by reason of alcohol, drugs, physical
disability, mental instability, or otherwise.
(2) “Medical peer review
committee” also includes a committee of a pharmacy society or association that
is authorized to evaluate the quality of pharmacy services or the competence of
pharmacists and suggest improvements in pharmacy systems to enhance patient
care, or a pharmacy peer review committee established by a person or entity
that owns a licensed pharmacy or employs pharmacists that is authorized to
evaluate the quality of pharmacy services or the competence of pharmacists and
suggest improvements in pharmacy systems to enhance patient care.
(1) Proceedings,
Reports, and Records of Medical Peer Review Committee. The proceedings, reports, and records of a medical
peer review committee shall be confidential and shall be exempt from the disclosure of public records under
Section 10 of G. L. c. 66, shall not be subject to
subpoena or discovery prior to the initiation of a formal administrative
proceeding pursuant to G. L. c. 30A, and shall not be subject to
subpoena or discovery, or introduced into evidence, in any judicial or
administrative proceeding, except proceedings held by the boards of
registration in medicine, social work, or psychology or by the Department of
Public Health pursuant to G. L. c. 111C, and no person who was
in attendance at a meeting of a medical peer review committee shall be
permitted or required to testify in any such judicial or administrative proceeding,
except proceedings held by the boards of registration in medicine, social work,
or psychology or by the Department of Public Health pursuant to G. L. c. 111C,
as to the proceedings of such committee or as
to any findings, recommendations, evaluations, opinions, deliberations, or
other actions of such committee or any members thereof.
(2) Work Product of
Medical Peer Review Committee. Information and records which are necessary to
comply with risk management and quality assurance programs established by the
board of registration in medicine and which are necessary to the work product
of medical peer review committees designated by the patient care assessment
coordinator are subject to the protections afforded to materials subject to Subsection (b)(1),
except that such information and records may be inspected, maintained, and
utilized by the board of registration in medicine, including but not limited to
its data repository and disciplinary unit. Such information and records
inspected, maintained, or utilized by the board of registration in medicine
shall remain confidential, and not subject to subpoena, discovery, or
introduction into evidence, consistent with Subsection (b)(1), except that
such records may not remain confidential if disclosed in an adjudicatory
proceeding of the board of registration in medicine.
(c) Exceptions. There is no
restriction on access to or use of the following, as indicated:
(1) Documents, incident
reports, or records otherwise available from original sources shall not be
immune from subpoena, discovery, or use in any such judicial or administrative
proceeding merely because they were presented to such committee in connection
with its proceedings.
(2) The proceedings,
reports, findings, and records of a medical
peer review committee shall not be immune from subpoena, discovery, or
use as evidence in any proceeding against a member of such committee who did
not act in good faith and in a reasonable belief that based on all of the facts
the action or inaction on his or her part was warranted. However, the identity
of any person furnishing information or opinions to the committee shall not be
disclosed without the permission of such person.
(3) An investigation or
administrative proceeding conducted by the boards of registration in medicine,
social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C.
(d) Testimony Before
Medical Peer Review Committee. A person who
testifies before a medical peer review committee or who is a member of such
committee shall not be prevented from testifying as to matters known to such person independent of the committee’s
proceedings, provided that, except in a proceeding against a witness in Subsection (c)(2),
neither the witness nor members of the committee may be questioned regarding
the witness’s testimony before such committee, and further provided that
committee members may not be questioned in any proceeding about the identity
of any person furnishing information or opinions to the committee, opinions
formed by them as a result of such committee proceedings, or about the deliberations
of such committee.
(e) Non–Peer Review
Records and Testimony. Records of treatment
maintained pursuant to G. L. c. 111, § 70, or incident
reports or records or information which are not necessary to comply with risk
management and quality assurance programs established by the board of registration
in medicine shall not be deemed to be proceedings, reports, or records of a
medical peer review committee; nor shall any person be prevented from
testifying as to matters known by such person independent of risk management
and quality assurance programs established by the board of registration in
medicine.
NOTE
Introduction. The medical peer review privilege, unlike so many other privileges, is not based on
the importance of maintaining the confidentiality between a professional and a
client, but rather was established to promote rigorous and candid evaluation of
professional performance by a provider’s peers. See Beth Israel Hosp. Ass’n v. Board of Registration in Med., 401 Mass. 172,
182–183, 515 N.E.2d 574, 579–580 (1987). This is accomplished by requiring
hospitals and medical staffs to establish procedures for medical peer review
proceedings, see G. L. c. 111, § 203(a), and by legal safeguards
against the disclosure of the identity of physicians who participate in peer
review and immunity to prevent such physicians from civil liability. See Ayash v. Dana-Farber Cancer Inst., 443
Mass. 367, 396, 822 N.E.2d 667, 691, cert. denied, 546 U.S. 927 (2005).
Subsection (a)(1).
This subsection is taken nearly verbatim from G. L. c. 111,
§ 1.
Subsection (a)(2).
This subsection is taken nearly verbatim from G. L. c. 111,
§ 1. A licensed pharmacy
is permitted to establish a pharmacy peer review committee:
“A licensed
pharmacy may establish a pharmacy peer review committee to evaluate the quality
of pharmacy services or the competence of pharmacists and suggest improvements
in pharmacy systems to enhance patient care. The committee may review
documentation of quality-related activities in a pharmacy, assess system
failures and personnel deficiencies, determine facts, and make recommendations
or issue decisions in a written report that can be used for contiguous
quality improvement purposes. A pharmacy peer review committee shall include
the members, employees, and agents of the committee, including assistants,
investigators, attorneys, and any other agents that serve the committee in any
capacity.”
G. L. c. 111,
§ 203(g).
Subsection (b).
Both Subsection (b)(1), which is taken nearly verbatim from G. L. c. 111,
§ 204(a), and Subsection (b)(2), which is taken nearly verbatim from G. L. c. 111,
§ 205(b), “shield information from the general public and other third
parties to the same extent, [but] only information protected by § 204(a)
[Subsection (b)(1)] is shielded from the board [of registration in medicine]
prior to the commencement of a G. L. c. 30A
proceeding.” Board of Registration in Med. v. Hallmark Health Corp.,
454 Mass. 498, 508, 910 N.E.2d 898, 906 (2009). “Determining whether the
medical peer review privilege applies turns on the way in which a document was
created and the purpose for which it was used, not on its content. Examining
that content in camera will therefore do little to aid a judge . . . .”
Carr v. Howard, 426 Mass. 514, 531, 689 N.E.2d 1304, 1314 (1998).
However, the peer review privilege does not prevent discovery into the process
by which a given record or report was created in order to determine whether the
information sought falls within the privilege. Id.
Subsection (b)(1).
This subsection applies to “proceedings, reports and records of a medical
peer review committee.” G. L. c. 111, § 204(a). Material
qualifies for protection under this subsection if it was created “by, for, or
otherwise as a result of a ‘medical peer review committee.’” Board of
Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 509, 910
N.E.2d 898, 907 (2009), quoting Miller v. Milton Hosp. & Med. Ctr., Inc.,
54 Mass. App. Ct. 495, 499, 766 N.E.2d 107, 111 (2002). See Carr v. Howard,
426 Mass. 514, 522 n.7, 689 N.E.2d 1304, 1309 n.7 (1998) (asserting privilege
of G. L. c. 111, § 204(a), [Subsection (b)(1)] requires
evidence that materials sought “were not merely ‘presented to [a] committee in
connection with its proceedings,’ . . . but were, instead, themselves,
‘proceedings, reports and records’ of a peer review committee under § 204(a)”).
Subsection (b)(2).
This subsection applies to materials that, while not necessarily “proceedings,
reports and records” of a peer review committee, are nonetheless “necessary to
comply with risk management and quality assurance programs established by the
board and which are necessary to the work product of medical peer review
committees.” G. L. c. 111, § 205(b). Such materials include
“incident reports required to be furnished to the [board] or any information
collected or compiled by a physician credentialing verification service operated
by a society or organization of medical professionals for the purpose of
providing credentialing information to health care entities.” Id. The
protections afforded to materials covered by Subsection (b)(2) differ from
those afforded by Subsection (b)(1) in that documents protected by Subsection (b)(2)
“may be inspected, maintained and utilized by the board of registration in
medicine, including but not limited to its data repository and disciplinary
unit,” and this subsection does not require that such access be conditioned on
the commencement of a formal adjudicatory proceeding. G. L. c. 111,
§ 205(b).
Subsection (c).
This subsection is taken nearly verbatim from G. L. c. 111,
§ 204(b), and Pardo v. General Hosp.
Corp., 446 Mass. 1, 11–12, 841 N.E.2d 692, 700–701 (2006), where the
Supreme Judicial Court observed that
“the privilege
can only be invaded on some threshold showing that a member of a medical peer
review committee did not act in good faith in connection with his activities as
a member of the committee, for example did not provide the medical peer review
committee with a full and honest disclosure of all of the relevant
circumstances, but sought to mislead the committee in some manner.”
In Pardo, the court held that the privilege was not
overcome by the allegation that a member of the committee initiated an action
for a discriminatory reason. Id. See also Vranos
v. Franklin Med. Ctr., 448 Mass. 425, 447, 862 N.E.2d 11, 21 (2007).
Subsection (d).
This subsection is taken nearly verbatim from G. L. c. 111,
§ 204(c).
Subsection (e).
This subsection is taken nearly verbatim from G. L. c. 111,
§ 205.