MDNews - Minnesota

April 2015

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No Place for Employers to Hide Improper Bias By Lawrence P. Schaefer, Owner and President, and Bert Black, Senior Attorney, at Schaefer Halleen LLC because they do have access to all the medical records and can retain their own experts. Whatever the opinions of the peer reviewers might be, the plaintiffs supposedly would have all the factual information about the events in question. In an employment case, the exact opposite rationale applies. The peer-review proceedings will likely be treated as the essential facts. For example, a female physician terminated because of gender bias may be told the decision was actu- ally based on unbiased but secret peer review. How could she possibly address such an excuse without access to the peer review proceedings? How Minnesota Law Works Minnesota courts have recognized that there are at least some exceptions to the peer review privilege. For example, in In Re: Peer Review Action, 3 the defendant hospital peer reviewed a physician's alleged disruptive behavior, suspended his privileges for 120 days and imposed post-suspension probation. The physician sued to enjoin the hospital from taking these actions, and the hospital sought to dismiss the action, claiming immunity under federal and state law. The trial court held there was no statutory immunity and granted a temporary injunction because it found the hospital had acted with malice. The Minnesota Court of Appeals affirmed, relying on a provision in Minnesota statute § 145.63, under which a hospital forfeits its state-law immunity if its peer-review process was motivated Peer Review and Discrimination: M I N N E S OTA HAS ADOPTED a statute that protects a "review organization" from disclosure of information acquired "in the exercise of its duties and functions." The statute makes clear such information is immune from subpoena or discovery and can't be introduced into evidence in a civil action. 1 Another provision grants immunity to individuals directly involved in the peer review process. 2 Does this mean that physi- cians can be disciplined or terminated after peer review but offered no opportunity to learn how and why the decision was reached or to bring claims against reviewers who acted improperly? Do these provisions mean evidence of what really went on behind the closed peer review door can't be used in pursuing remedies against an employer? The answer to all these questions is no. To explain why that's so, this article explores the origin of the peer-review privilege, how it actually works under Minnesota law, and how claims arising under federal statutes generally trump such state law privileges. Origins of the Privilege One of the primary motivations for most state peer review protection statutes is concern that if a hospital or other health care provider investigates an injury to a specific patient or a systemic problem that affects patients in general, the resulting report or conclusions drawn from that report might be used as evidence in a malpractice case. The benefits of investigation and correc- tion are generally thought to outweigh the litigation interests of potential plaintiffs Lawrence P. Schaefer, Owner and President of Schaefer Halleen LLC 1 6 | Minnesota MD NEWS ■ M D N E W S . CO M

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