Delaware Spotlight: Peer Review Privilege and Case Law Update

On February 22, 2021, the Delaware Superior Court held in Palmer v. Christiana Care Health Services, Inc., et. al., 2021 WL 673462 (Del. Supr.), that certain records of a hospital’s credentialing committee may be discoverable and are not protected by the Delaware medical peer review statute, 24 Del. C. § 1768 (the “Delaware Peer Review Statute”). This recent case highlights the continued importance for a health care system or other organization with a peer review committee to understand what is protected by the Delaware Peer Review Statute and the steps that should be taken to avoid waiving the protection.

Delaware Peer Review Statute Overview

Under the Delaware Peer Review Statute, the following boards, societies, and individuals listed below are immune from liability for any acts done, for any omissions, or from “any recommendation made, so long as the person acted in good faith and without gross or wanton negligence”:

• The Delaware Board of Medical Licensure (“Board”), its members, and the members of any committees appointed by the Board;
• The Medical Society of Delaware (“Society”), its members, and the members of any committees appointed by the Society;
• Members of any committee appointed by a certified health maintenance organization;
• Members of hospital and osteopathic medical society committees;
• Members of a professional standards review organization established under federal law; and
• Members of other peer review committees or organizations whose function is the review of medical records, medical care, and physicians’ work, with a view to the quality of care and utilization of hospital or nursing home facilities, home visits, and office visits.

In addition, under the Delaware Peer Review Statute, the records and proceedings of the committees and organizations described above (each a “Peer Review Committee”) are confidential, not available for court subpoena, and not subject to discovery. The Delaware Peer Review Statute also provides that a “person in attendance at a meeting of any such committee or organization is not required to testify as to what transpired at the meeting.”

Delaware Case Law

In order to determine whether a record or proceeding is protected by the Delaware Peer Review Statute, the Delaware courts will analyze the type of committee from which the record is sought, including the nature and scope of the committee’s action, and the type of information sought. In general, the Delaware courts have held that the Delaware Peer Review Statute only protects the following:

• Any paperwork, report, or compilation of data that is used exclusively by a Peer Review committee;
• Documents created by the Peer Review Committee that were not shared with individuals who are not members of the Peer Review Committee; and
• The actual testimony of witnesses appearing before the Peer Review Committee.

However, the following information is not protected by the Delaware Peer Review Statute:

• The identity of who testified before the Peer Review Committee;
• When the Peer Review Committee met;
• Any other similar nontestimonial information related to the Peer Review Committee;
• Documents created by the Peer Review Committee that were shared with non-members; and
• Any paperwork, report, or compilation of data that is not used exclusively by the Peer Review Committee.

In Palmer v. Christiana Care Health Services, Inc., et. al., the plaintiff served document production requests on Christiana Care Health Services, Inc. (“Christiana Care”) requesting “information about any peer review meetings held concerning Dr. Bose.” The court noted that the requests did not differentiate from which peer review committees the plaintiff sought information. The court stated that whether information is protected by the Delaware Peer Review Statute depends on the type of peer review committee from which information is sought and the claim upon which discovery is sought. For example, the court noted that discovery of information from a hospital Morbidity and Mortality Conference or similar peer review committee concerning the outcome of a specific surgical case is the type of information that the Delaware Peer Review Statute is meant to protect.

In contrast, the Delaware Superior Court noted that information from a hospital credentialing committee is “less likely to implicate the core values expressed” in the Delaware Peer Review Statute. In line with previous Delaware case law, the Delaware Superior Court held that the following information related to Christiana Care’s Credential Committee was discoverable and not protected by the Delaware Peer Review Statute:

• Dates and times of any Credential Committee meetings at which the credentials of Dr. Bose were under consideration;
• Any documents provided to but not produced exclusively for use by the Credential Committee that were submitted to the Committee for consideration; and
• Any documents provided by the Credential Committee that were shared with a different person, group, or entity concerning the credentialing of Dr. Bose.

Practical Takeaways

• A healthcare system or other organization should understand and clearly identify which of its committees are protected by the Delaware Peer Review Statute (or comparable applicable state law).
• Any peer review committee that is protected by the Delaware Peer Review Statute should limit access to the committee’s documents to members of the committee.
• The peer review committee should clearly mark any paperwork, report, or compilation of data that is used exclusively by the committee and identify that such document is protected by the Delaware Peer Review Statute.