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Bloom & Buell's

NON-EMERGENCIES PREFERRED

Almost anything in life can be turned into an emergency and/or disaster by lack of planning. This little rule of thumb proves itself constantly in the lives of most of us. When it comes to lawyers, of course, they can often hide their lack of planning in legalistic gobbledygook, but the cognoscenti can tell.

Peer review documents certainly present a perfect opportunity for such emergencies. Doctors and hospital officials connected with a civil action for professional negligence have often convinced themselves, without doing the slightest homework, that certain records are peer review and thus non-discoverable. Panic sets in when a trial judge demands to see these documents. Scurrying about at that point can really raise the blood pressure, but this won't deflect an in camera inspection (legalese for a look-see). In Massachusetts, a recent case from our Supreme Judicial Court, Carr v. Howard, sets out rather complicated guidelines for classifying relevant documents as Peer Review and rendering them non-discoverable, shielding them even from look-sees. But even a cursory reading of the case makes it clear that much homework is required, and on many levels.

To begin with, general or corporate counsel for the hospital would be well-advised to take a look at the by-laws, rules and regulations of the hospital, to ensure that there is a clearly delineated qualified patient care assessment program (QPCAP for you acronym-lovers) in place, with medical peer review committees specifically identified, their processes spelled out, and the documentation necessary for their work carefully described. It is the documentation of the type described in these by-laws, rules and regulations that will earn the title "Peer Review".

Secondly, the Quality Assurance staff, or whoever has the task of supervising the collection of peer review data and materials, should follow the by-law descriptions exactly in coming up with forms and reporting guidelines, so that there is no question about which documents are a necessary part of peer review.

Thirdly, the Risk Managers, or whoever handles the litigation for the institution, should have a good handle on both the by-laws and the forms flowing from those by-laws and should even, I might suggest, have several sets of these by-laws and their companion forms prepared for sending to trial counsel, if it has come to litigation. Drafts of affidavits in which officers of the concerned committees describe these committees and their work, and spell out in detail the paperwork necessary for the functioning of these committees, should be sent along by the Risk Managers to counsel where appropriate. Such steps would go a long way towards calming the emergency atmosphere when these documents are demanded in discovery. It is the trial attorney who represents the institution that will have to take the first steps to protect these documents, so the necessary paperwork should be ready.

Lastly, defense counsel should have had some preparation in the whole process dictated by the Carr decision before things start rolling towards a confrontation, in order to stay a step ahead of the party seeking the documents. Defense counsel should expect that peer review challenges will always be part of discovery practice, and thus should have at least the formats for the necessary motions and affidavits ready to be cranked out.

Oddly enough, these four levels of professionals -- hospital counsel, quality assurance personnel, risk managers and trial counsel -- rarely ever meet to discuss common problems. It is this failure that creates the conditions from which emergencies arise. Perhaps the insurers who cover the health care institutions could provide such assistance by acting as conveners. They, after all, move among these groups more than any others. How about it, gang? Elsewise, strap on your roller skates as the emergency begins.

This commentary is not intended as legal advice. For advice on a specific case, you should contact the attorneys directly. Pursuant to Rule 3:07 of the Supreme Judicial Court Rules of the Commonwealth of Massachusetts, this communication may be considered advertising.