A recent decision from the North Carolina Court of Appeals reinforced the statutory protection against disclosure during litigation of the proceedings of, records and material produced by, and information considered by a hospital’s credentials committee. But to evoke that protection successfully, the hospital has the burden of showing that (1) the credentials committee was established by the medical staff or hospital’s governing board (2) “for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing” and (3) that the information for which protection is sought were, in fact, records of the committee’s proceedings or records considered or produced by the credentials committee. The defendants in Estate of Ray v. Forgy and Grace Health Care System, Inc. et al, COA15-236, Filed 16 February 2016, were able to do just that.
It was not an easy task. In fact, the trial court, sitting in Burke County, found that the defendants had not carried that burden completely and ordered the production of 161 of the 330 items the hospital had listed in a privilege log and provided for in camera inspection by the court. The Court of Appeals reversed, finding that the affidavit submitted by the hospital’s director of medical staff services was sufficient to establish (1) that the credentials committee qualified as a “medical review committee,” i.e., a committee established by the medical staff or hospital’s governing board “for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing”; (2) that the subject documents contained the ‘records and materials produced by and/or considered by’ the committee; and (3) that the privilege log -- which included a description of each document, the author or source of each document, the date of the document, and the recipient of the document -- established that the subject documents were, indeed, records and materials either produced or considered by the committee.
Lessons from this case: Careful attention to the formalities by which hospitals create medical review committees, including credentials committees, and the procedures by which those committees conduct their investigations or proceedings continues to be required. This attention includes the creation and maintenance of an accurate record of the materials considered or produced by an appropriately established medical review committee. Experienced plaintiffs’ attorneys will persist in seeking disclosure of information hospitals believe are subject to protection but which may be vulnerable to disclosure if the statutory formulary is not followed. Attorneys representing hospitals learned that lesson in the Supreme Court’s decision in Hammond v. Saini, 367 N.C. 607, 766 S.E.2d (2014). At issue in Hammond was whether materials reviewed or produced by the hospital’s Root Cause Analysis Team investigating an operating room fire were discoverable.
The Hammond court concluded that the hospital had not met its burden of showing strict adherence to the governing statute, N.C. Gen Stat.§131E-95, and ordered the production of critical documents the hospital believed would never be disclosed.
We are continuing to assist hospital clients and carriers in a proactive examination of the formalities by which hospitals create medical review committees and the procedures by which those committees conduct their investigations. It’s better to conduct that examination before getting served with discovery requests in an active lawsuit.