By Leda Tabaie with credit to Jennifer Gallop, Esq. and Anthony J. Cichello, Esq
In December of 2011, the Superior Court of Massachusetts enforced an investigative subpoena issued by the Massachusetts Board of Registration in Medicine (“Board”) to Sturdy Memorial Hospital, Inc. (“Sturdy”), compelling the disclosure of materials claimed by Sturdy to be privileged core materials of medical peer review committee. The subpoena at issue sought to compel the production of certain handwritten notes (“Notes”) created by Sturdy’s Medical Director concerning a physician, Dr. Doe, about whom complaints had been lodged. The Board sought all documents pertaining to Dr. Doe, including documents relating to incident reports referencing the physician and the investigation thereof, such as the Notes. Sturdy objected to producing the Notes, claiming they were protected by the medical peer review privilege under G.L. c. 111, § 204(a). The Board asserted that the Notes are protected under G.L. c. 111, § 205(b), which would allow for the production of such materials to the Board prior to the institution of a formal administrative proceeding under G.L. c. 30A. The Superior Court agreed with the Board, holding that the Notes constituted raw materials protected only by Section 205(b) and were therefore immediately discoverable by the Board.1
The fundamental purpose of the medical peer review privilege is to achieve quality health care by promoting candor and confidentiality in the peer review process and to “foster aggressive critiquing of medical care by the provider’s peers.” 2 G.L. c. 111, § 204(a) protects so-called “core materials,” i.e., the proceedings, reports, and records of a medical peer review committee. Section 205(b) protects from disclosure the “raw materials” of a peer review committee, specifically, “[i]nformation and records which are necessary to comply with risk management and quality assurance programs… and which are necessary to the work product of medical peer review committees.” Both categories of peer review material are protected from disclosure to third parties except the Board of Registration, which can obtain the Section 205(b) materials upon request but can only obtain Section 204(a) core materials after the institution of a formal adjudicatory proceeding. 3
In the Sturdy case, the medical director, Dr. Pietro, served as the coordinator of the hospital’s Patient Care Assessment Program (“PCAP”) and as chairman of its Clinical Risk Management Committee (“CRMC”). Both of these programs operated as peer review functions under the hospital’s bylaws. To support its claim that the Notes were protected under Section 204(a), Sturdy introduced an affidavit from Dr. Pietro which claimed that the Notes were core materials made pursuant to his duties as coordinator of PCAP and CRMC. Thus, Sturdy argued that, per Section 204(a), the Notes were not then subject to production to the Board, which had not yet commenced an adjudicatory proceeding. In contrast, the Board argued that the Notes were only protected by Section 205(b) which allows the Board to inspect, maintain, and utilize such raw materials prior to the commencement of formal adjudicatory proceedings.
In finding that the Notes at issue constituted raw materials, the Sturdy court relied heavily on the analysis of the Supreme Judicial Court (“SJC”) in its 2009 case, Hallmark, in which the SJC distinguished peer review core materials protected under Section 204(a) from Section 205(b) raw materials. In Hallmark, the SJC recounted the statutory history of the peer review privilege, noting that, in 1987, it had held that Section 204(a) did not protect “raw materials” relied on by a peer review committee if they were obtained from other sources.4 In response to that decision, the Massachusetts Legislature enacted Section 205(b) to extend the medical peer review privilege to documents that might otherwise fall outside the scope of Section 204(a), but that are nonetheless necessary to risk management and quality assurance programs. The Hallmark court pointed out that while both sections shield information from the general public and other third parties, Section 204(a) shields information from the Board only until the Board commences formal proceedings under G.L. c. 30A, whereas raw materials protected under Section 205(b) may be inspected, maintained, and utilized by the Board upon request.
The SJC found this distinction to be consistent with the overarching objectives of the medical peer review privilege because only the Board, and not the general public, would gain access to the materials and they would remain confidential. The Board, the court reasoned, is part of the regulatory scheme intended to protect the public interest by promoting the highest quality medical services through conducting disciplinary proceedings. In its analysis, the Hallmark court also explained that the proper inquiry for determining what protective status the Notes would receive involved analyzing “the way in which a document was created and the purpose for which it was used, not…its content.”5
The court rejected Sturdy’s contention that the Notes were created by, for, or otherwise as a result of a medical peer review committee, noting that, at best, the materials were created “for” a peer review committee. Even if created “for” such a committee, the court nevertheless found the Notes to be only raw materials protected by Section 205(b). In making this finding, the court placed particular emphasis on the fact that the Notes were not made in response to a specific request by a medical peer review committee, but instead were made in anticipation of potential consideration by such a committee. The court reasoned that, because there was no evidence on record that a peer review committee ever convened, generated any record, or rendered any decision concerning Dr. Doe, the Notes were not protected under Section 204(a).6
This case takes a very narrow view of the materials protected by Section 204(a) from disclosure to the Board during the investigatory stage. While Hallmark and Beth Israel both held that raw materials obtained from other sources were subject to production to the Board during this stage, neither required the production of the work product of the hospital’s Medical Director in the course of his duties as the coordinator and chairman of the hospital’s designated peer review committees. In analyzing contested materials regarding privilege, the Sturdy court seemed to emphasize form over substance in a way that favors Board access. The Court gave little credence to the Medical Director’s affidavit explaining the purpose for which the Notes were created. Instead, it focused on timing and the fact that a peer review committee had not yet convened. Indeed, the court observed that the “Notes may, at some point be necessary work product of a medical peer review committee” and presumably then would be protected from Board review.7
This ruling, if followed by other courts, could have practical implications for health care providers. The Notes were not specifically designated as privileged peer medical review materials and the Medical Director was not careful about specifying in what capacity he was creating the Notes. Attorneys should consider advising healthcare clients to be mindful of the timing and process for protecting materials under the medical peer review privilege. Furthermore, early on, clients may want to consider convening a formal review committee meeting to preserve the confidentiality of materials made in connection with incident reports or investigations of professional misconduct. Finally, there is a concern that a more restrictive definition of the core peer review protection of Section 204(a) and the heightened possibility of early-stage disclosure of materials to the Board of Registration disciplinary unit, particularly notes created by the Medical Director or another physician peer review committee, could undermine the candor and openness that is necessary for an effective peer review process.
Leda Tabaie is a graduate of Northeastern University School of Law, class of 2012. Throughout her law school career, Leda has interned with the Honorable Judge William G. Young of the United States District Court for the District of Massachusetts, the Reproductive Freedom Project at the American Civil Liberties Union, and Oxfam America. With this strong background in public interest, Leda aspires to advocate for reproductive justice in Boston.
1 Board of Registration in Medicine v. Sturdy Memorial Hospital, No. MICV2011-04006-C, 2011 WL 7102574, *4 (Mass. Super. Dec. 12, 2011).
2 Board of Registration in Medicine v. Hallmark Health Corporation, 454 Mass. 498 (2009).
3 G.L. c. 111, §§204(a), 205(b).
4 Beth Israel Hosp. Ass’n. v. Board of Registration in Medicine, 401 Mass. 172, 183 (1987).
5 Sturdy, 2011 WL at *2, citing Hallmark, 454 Mass. at 509.
6 See Beth Israel Hospital Association v. Board of Registration in Medicine, 401 Mass. 172, 183 (1987) (“Section 204 does not protect information generated by other components of the QPCAP system or the ‘raw materials’ relied on by a [peer review committee] if obtained from other sources.”); Carr v. Howard, 426 Mass. 514, 522 n.7 (1998) (holding that protection under Section 204(a) only applies to documents which are themselves a product of the proceedings, reports, and records of a peer review committee, and not merely materials made to be presented to such a committee).
7 Sturdy Memorial Hospital, 2011 WL at *4