Cited Article

Confidentiality and Privilege of Peer Review Information: More Imagined Than Real

Case Citation

Trinity Med. Ctr. v. Holum, 544 N.W.2d 148 (N.D. 1996)


The fact-specific holding “Medical peer review privilege covered the Medical Staff Quality Assurance, Credentials, Safety, Infection, and Medical Staff Executive Committees for the purpose of malpractice discovery. The committees' internal functioning only was protected.”

Citing Quote

Trinity relies primarily upon caselaw from other states to support its argument for a broad reading of the privilege, to cover all hospital committees, departments, and individual employees performing medical review functions, and to protect all information or documents presented to them or created at their direction. However, because of the lack of uniformity among the various states' peer review privilege statutes, caselaw interpreting those statutes is not highly persuasive in our interpretation of Sections 23-01-02.1 and 31-08-01, N.D.C.C. It has been noted that "there is extremely wide variation in the privilege granted by the states," and that there is little consistency in the entities covered or types of information protected. Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of Peer Review Information: More Imagined Than Real, 7 J.L. & Health 169, 186-187 (1992-1993); see also Ernest J. Naufel, Jr., Physician Peer Review - Is it Really Confidential?, 45 Fed'n Ins. & Corp. Couns. Q. 229, 229-230 (1995). As a result, the caselaw interpreting these widely varying statutes has been described as "creating a crazy quilt effect among the states." Scheutzow & Gillis, supra, 7 J.L. & Health at 188; see also Naufel, supra, 45 Fed'n Ins. & Corp. Couns. Q. at 230 ("There are as many different approaches to a resolution of this situation as there are appellate courts and legislatures."); Charles David Creech, The Medical Review Committee Privilege: A Jurisdictional Survey, 67 N.C.L. Rev. 179, 212 (1988). Thus, although nearly every state has some form of statutory privilege for medical peer review, it appears that no two statutes, or courts' interpretations of them, are alike. Trinity has confused confidentiality with privilege. It is the second sentence which creates the privilege. The first sentence merely provides that information made available to the committee is confidential, and "may be used by such committees and the members thereof only in the exercise of the proper functions of the committees." That provision is directed to those who acquire information in the course of serving on the committee, and directs that they are not free to disseminate such information to third persons or the public. Confidentiality, however, is not synonymous with privilege: "Confidentiality and privilege are two compatible, yet distinct, concepts. Privilege addresses a person's right not to have another testify as to certain matters as part of a judicial process, while confidentiality addresses the obligation to refrain from disclosing information to third parties other than as part of legal process." Scheutzow & Gillis, supra, 7 J.L. & Health at 192. We conclude that the privilege under Sections 23-01-02.1 and 31-08-01 applies only to the "proceedings and records of" covered committees.

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