Michigan Supreme Court Holds that Peer Review Privilege Protects ‘Objective Facts’ Contained in Incident Reports
Apr 04, 2015
Saurbier
On April 21, 2015, the Michigan Supreme Court issued an opinion in Krusack v. Covenant Medical Center, Inc, holding that data and knowledge collected by hospital peer-review committees, including objective facts, are not public information nor are they subject to subpoenas. (For a more detailed review of the history of Krusac and a summary of the January 13, 2015 oral argument, see NewsFlash – Volume 16, Issue 1).
This Opinion overrules the 2014 Court of Appeals opinion in Harrison v. Munson Healthcare, 304 Mich App 1; 851 NW2d 549 (2014) which held that the objective facts contained in an incident report are discoverable and not protected by the peer review privilege.
In its unanimous Per Curiam Opinion, the six voting members of the Supreme Court (Justice Bernstein took no part in the decision) first considered the language of MCL 333.21513(d) and MCL 333.21515, the Michigan peer review statutes. MCL 333.21513(d) imposes a duty on hospitals to create committees “for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.” To encourage a careful and candid review of hospital care, the Michigan Legislature then enacted MCL 333.21515, which protects the disclosure of “records, data, and knowledge collected for or by individuals or committees assigned a review function” from being made public or available by court subpoena.
The Court disagreed with the Harrison panel’s conclusion that objective facts were intended to be excluded from the peer review privilege and pointed out thatHarrison was decided by relying on several cases from outside this jurisdiction. The Court reasoned that the plain language of Michigan’s statutes “do[es] not contain an exception for objective facts contained in an otherwise privileged incident report.” Moreover, the Court rejected Plaintiff’s argument that non-disclosure of the objective facts conflicts with MCL 333.20175(1), which requires a hospital to “keep and maintain a full and complete record” for each patient, reasoning that this is an entirely distinct duty, unrelated to the peer review function, and therefore no conflict exists.
The Court opined that any burden on discovery created by these peer review statutes is mitigated by the fact that the plaintiff “may still obtain relevant facts through eyewitness testimony, including from the author of a privileged incident report, and from the patient’s medical record.” Lastly, the Court noted, “if a litigant remains unsatisfied with the statutory balance struck between disclosing information to patients and protecting peer review materials, any recalibration must be done by the Legislature.”
Please give us a call if you would like to further explore the issue of peer review privilege. We would be more than happy to discuss litigation strategies in light of this Opinion and the greater protections now afforded to peer review reports.
The full text of the Michigan Supreme Court’s Opinion can be accessed at: