Hospital cannot use Connecticut’s peer review statute as a sword as well as a shield.

A judge of the Superior Court of Connecticut, held last January that the hospital could not use a favorable peer review determination that an anesthesiologist on its staff had performed in accordance with the standard of care in its own defense of a negligent supervision and negligent credentialing case.  The court, in Halley v. Norwalk Hospital Association, Conn. Super. Ct., No. CV-04-4017092-S,  was responding to a motion by the plaintiffs in limine to prevent the hospital and the anesthesiologist’s professional corporation from disclosing the favorable peer review evaluation of the anesthesiologist.  The court held that the plain meaning of the statute does not directly or by inference permit disclosure of the fact that privileges were not terminated or restricted.

The lawsuit is vaguely similar to the one in “The Verdict,” starring Paul Newman where Newman played a lawyer representing a woman who was brain injured as a result of oxygen deprivation during the birth of a child.  Here the plaintiffs assert that Dr. Jay D. Angeluzza failed to monitor the blood oxygen of his patient during a caesarian delivery, resulting in severe brain injury.  The plaintiffs, the woman’s parents, also asserted that the hospital should have known the anesthesiologist was unfit because of a similar incident and damage five years earlier.  The Connecticut statute reads:  “The proceedings of a medical review committee shall not be subject to discovery or introduction into evidence in any civil action for or against a healthcare provider.”  (Emphasis supplied.)

State “Peer Review” statutes differ widely in their language and scope.  Some states restrict use of peer review materials in civil cases unless waived in writing.  Even though the judge referred to the “perceived unfairness” of restricting use of peer review findings as part of the defense, it would perhaps be more inequitable to permit the defendants to pick and choose when to use and when to withhold such information.

In comparison, an Ohio Appeals Court in Tenan v. Houston, Ohio Ct. App., No. 2004-A-0006 (1-13-06), found that a 2003 Ohio statute that expanded the scope of peer review protections could not be applied retroactively to restrict a plaintiff’s access to peer review materials in a negligent credentialing case because it represented a substantive rather than procedural change.  The Ohio court was not shy in signaling its attitude toward the statutory change.

Caveat Emptor has taken on a whole new meaning for patients who trust the name on the building when they enter there for healthcare.

In “fairness” hopefully the new Ohio peer review statute too cannot be manipulated to the favor of one side or the other.