Issue link: https://viewer.e-digitaledition.com/i/500040
Beware of Hallway Conversations Beware of Hallway Conversations by Joseph J. Feltes, JD Loose Lips Sink Ships: O NE OF THE most iconic sayings during World War II appears on a poster; the warning, "L o ose l ips si n k sh ips," admonishing folks not to engage in unprotected talk. That advice remains valid today when applied to informal "hallway" discussions between physi- cians about incidents or criticizing another provider's patient care. The outcome of any case depends on evidence admitted. Ohio's general rule is that relevant evidence is admis- sible, except as provided by the Ohio Constitution or by statute. What could be more relevant to a plaintiff 's medical malpractice case than peer criticism, especially if competency deficiencies were identified within the context of a peer-review committee? Allowing peer-review documents to be admitted into evidence, or com- pelling those pa rticipating in peer review to testify, however, would have a "chilling effect." Participants would be reluctant to serve on peer-review committees, and those who did likely would be hesitant to express candid and constructive criticism, which ultimately would not serve patient's best interest. Ohio's General Assembly recognized the need to create an exception to the general rule on admissibility by enacting legislation that protects formal incident reports, as well as records, reports, and data created or made available to a peer- review committee from being discoverable or admissible into evidence in civil cases. Moreover, participants in formal peer review cannot be compelled to testify about peer-review committee functions. They even receive statutory immunity for acts, omissions, decisions and other conduct within the scope of peer review. Ohio law broadly defines peer-review committees to include a ny forma l hospital committee or department that performs quality assurance, professional improvement, credentialing regarding physician competency, clinical care and professional behavior, as described in the medical staff bylaws. So long as physi- cians remain within the safety zone of peer review, there is statutory protection, which courts typically uphold. The moment physicians act outside of formal peer review, protection is imperiled, and courts may admit rel- evant documentary and oral evidence. The most common form of unprotected speech is the proverbial "hallway discus- sion," which can occur at the nurses' station, in proximit y to a patient's room or even within public earshot, and often begins with, "Have you heard about…" and can be fueled by rumor and speculation. But it also may involve unprotected criticism in the medical record, personal journals, or in email and social media. Unprotected speech or documents undermine trust, adversely affect repu- tation and could lead to a malpractice case. It also could result in the filing of a disparagement lawsuit by the target of unprotected criticism. Physicians, hospitals and patients are best served when competency and behavioral issues are handled within the scope of formal peer review com- mittees, and physicians button their lips in the hallways. J o e Fe l t e s i s a n a t t o r n e y w i t h Buckingham, Doolit tle & Bur rough s in Canton and a member of its Health & Medicine Practice Group. He is also the managing partner of Buckingham Canton. For more information about the law firm, go to bdblaw.com or e-mail Feltes at JFeltes@BDBLAW.com. ■ ++++++++++++++++++++++++ + +++ + +++ ++++++++++++++++++++++++ BUSINESS SECTION ❯ 2 4 | Cleveland/Akron/Canton MD NEWS ■ M D N E W S . CO M ■ M AY/J U N E 2 0 1 5