Article: Guidance on Iowa Peer Review

Guidance on Iowa Peer Review

By Connie Alt, Esq., Shuttleworth & Ingersoll

Peer Review

Peer review means, very simply, “evaluation of professional services rendered by a person licensed to practice a profession.” Iowa Code §147.1(4).  It applies not only to doctors, but to nurses and other allied health professionals.

Peer Review Records are defined very broadly in the Iowa Code, to include: all complaint files, investigation files, reports or other investigative information relating to discipline or professional competence in the possession of a peer review committee. Iowa Code §147.135(2).A Peer Review Committee is also broadly defined as, “one or more persons acting in a peer review capacity” who are members of the staff, professional society or group medical practice with a formal peer review process.  Iowa Code §147.1(5).

Iowa law provides that peer review records are protected as confidential and privileged and are not subject to discovery or subpoena and are not admissible at trial or hearing.  This protection is based on an “overwhelming public interest” in fostering the continued improvement in the care and treatment of patients including candid evaluations of clinical practices with constructive criticism.

Recent Court of Appeals Decision

Recently the Iowa Court of Appeals, in Orgovanyi v Henry County, et.al., held that based upon the record in that case, the peer review privilege did not protect a ‘patient safety report’ from discovery.  The ruling is concerning, but does provide some direction as to how to modify documentation and procedures so those documents would more likely be protected. The Court made a distinction between loss prevention (not protected) and peer review (protected), and held that the information must be in the possession of the peer review committee –whether or not generated by the committee –to constitute peer review and gain the statutory protection. 

In Orgovanyi, the risk manager had possession of the patient safety report and testified that she would typically analyze these reports and provide summary information to the peer review committee.  She did not testify that she had provided the report to the peer review committee and did not testify that she was an agent of the peer review committee.  Based on this record, the Court found that there was insufficient evidence that the report was “in the possession of a peer review committee or an employee of a peer review committee.”The Court stated that absent other information to the contrary, it was ‘logical’ that the patient safety report was not part of the peer review process but part of the hospital’s “regular risk management system.”

What this Case Means to You

While your institution may approach these types of reports, whether they are called Variance Reports, Patient Safety Reports or Incident Reports, in such a way that you are already protected, you should re-evaluate your quality reporting systems to be sure that you have procedures in place that give you the best chance that all such reports which contain critiques of professionals are protected under the peer review statute.

The following recommendations may be helpful:

• Direct reports to someone who has been designated as an agent of the peer review committee
• Understand as the initial reviewer that possession is only as agent of the peer review committee
• Understand that as an agent of the peer review process, these reports are the beginning of the peer review process and the agent's task is to:
• Evaluate all reports as an agent of the peer review committee
• Send those reports that relate to a healthcare provider's professional care or competence to the peer review committee for review and action as the committee sees fit
• Route reports to the peer review committee and have them reviewed (remember the peer review committee is a broad term and need not be the same for all purposes)
• Modify existing policies so they accurately define the above roles and procedures
• Educate your staff about the broad reach of peer review protections, the meaning of peer review and the requirements to obtain and maintain protection of documents

These recommendations do not guarantee protection of such documentation from discovery in litigation, but modifications to your policies and procedures will go a long way to support the argument that protection does exist.  

Remember there may be more than one way to accomplish effective peer review that provides protection.

For specific wording of the complete Code, see http://www.legis.state.ia.us/IACODE/2001/147/135.html 

About the author:

Connie Alt is an attorney with the law firm of Shuttleworth & Ingersoll.  Her legal work focuses primarily in the area of litigation (medical malpractice, products liability, employment and commercial litigation) and administrative matters for healthcare providers.  Her experience includes more than 40 jury trials, as well as non-jury trials, administrative hearings and appellate arguments.

Attorneys in the Shuttleworth & Ingersoll Health Law practice area represent a number of healthcare providers including regional and county hospitals, as well as physicians, home health agencies, nursing homes, pharmacies and a wide variety of others in dealing with the multifaceted legal issues which arise in the healthcare environment. www.shuttleworthlaw.com