Court Rules Computer Metadata of Peer Review Committee Discoverable in Litigation

Peer review is the essential process by which physicians critique the medical services provided by their colleagues for the purposes of decreasing occurrences of medical malpractice and increasing the quality of health care, while simultaneously serving as a primary method of evaluating the quality of patient care. Currently, almost all states have enacted peer review privilege statutes to protect the work of medical peer review committees, however, recent cases at the state and federal levels have chipped away at the once-impenetrable privilege that peer review committees had from disclosure during medical malpractice litigation.

Earlier this month, the U.S. District Court in the Southern District of Illinois, in Hall v. Flannery, No. 3:13-cv-914-SMY-DGW (S.D. Ill. May 1, 2015) held that the state’s peer review privilege did not protect from disclosure the so-called “audit trail” of who viewed a patient’s electronic medical record (EMR) and when same was viewed.

The plaintiff in a medical malpractice lawsuit sought the audit trail and metadata associated with the patient’s medical record in discovery to support a legal theory that the patient’s medical records were improperly altered by the defendant hospital. The audit trail and metadata included the date, time, the name of the person who accessed the record, their user ID, and the items that they viewed.

The defendants vociferously contended the peer review privilege protected this information from disclosure. The defendants argued that the audit trail would reveal the names of the individuals, including peer review committee members, who viewed the medical record, and what items in the chart peer review committee members viewed.

The court disagreed with the defendants and explained that the privilege “protects the discussions, comments, and conclusions made during the peer review process, in order to facilitate frank discussion without the fear of legal or professional reprisal in an effort to improve patient outcome, but would not protect subsequent decisions or recommendations that would result from the peer review discussions or information generated prior to the peer review process.” (emphasis added).

More specifically, the court noted that as the medical record itself was discoverable and as the audit trail and metadata were incorporated in those records, the audit trail and metadata were consequently not subject to the peer review privilege.  Moreover, the court found the peer review committee did not generate the data at issue to further its evaluation of the patient’s medical care, but that rather, the audit trail was created “in the ordinary course of a hospital’s medical business . . . [and] is not privileged even if later used by a committee in the peer-review process.”

Ultimately, the court’s recent decision is yet another blow to the peer review privilege, and is consistent with the nationwide trend to limit the privilege.  However, given the court’s sweeping limitation of the privilege to only “discussions, comments, and conclusions made during the peer review process,” hospitals and providers must be ever cognizant that data created prior to and subsequent to the peer review are not necessary protected from disclosure and that presumably all metadata automatically created by the hospital’s computer system, with respect to a patient’s medical record, are discoverable.

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