Peer Review Privilege and Medical Malpractice in West Virginia – Wheeling Hospital, Inc. v. Mills

index-1239049-1599x1066It is widely understood in federal and state courts that certain documents are privileged and protected from the public eye, including the eyes of other parties. These include documents created in anticipation of a case proceeding to trial, or documents evidencing communications between a lawyer and his or her clients.  One less well-known privilege that protects certain documents from public production is the peer review privilege. The peer review privilege, which protects documents produced in evaluating a physician, is widely raised in medical malpractice cases and is the subject of much dispute.  Recently, the Supreme Court of Appeals of West Virginia sought to clarify this privilege under state law.

In the Wheeling Hospital, Inc. v. Mills case, a patient, Ms. Stephanie Mills, was treated by Dr. Ghaphery for a thyroid condition.  During surgery to treat the condition, Ms. Mills’ nerves surrounding her thyroid gland were severed, and she was left with vocal cord paralysis.  Ms. Mills filed a medical malpractice case against Dr. Ghaphery and the hospital where he practiced, Wheeling State Hospital, seeking damages for the harm she suffered and alleging negligence. During discovery in the case, Ms. Mills requested that Wheeling produce documents related to prior surgeries Dr. Ghaphery had performed in order to determine whether other patients had suffered similar complications. The hospital refused to produce the records, arguing that they were protected by the peer review privilege.  The trial court ordered that the documents be produced, and Wheeling State Hospital sought an order from the Supreme Court ordering that it not be required to follow the order of the trial court.

The peer review privilege in West Virginia protects peer review proceedings conducted by a hospital in evaluating its medical doctors and other credentialed employees. The purpose of the privilege is to encourage hospitals and other facilities to candidly evaluate their employees and ensure the highest quality of care by protecting the candor of health facilities and preventing patients and other individuals from accessing such review files. While many documents within a doctor’s peer review file are protected from disclosure, certain documents may be produced under West Virginia’s state law. These include documents otherwise available from “original sources” and documents whose privilege has been waived.

In this case, Ms. Mills argued that the documents she sought were not used solely for the purpose of evaluating Dr. Ghaphery but were part of Wheeling’s quality control process and were accessible by numerous employees within the hospital system.  Moreover, Ms. Mills argued that such data was regularly reported to the West Virginia Board of Medicine. Accordingly, Ms. Mills contended that they were not privileged because they were not exclusively for the peer review process, and they were available from other original sources outside peer review. Conversely, Wheeling argued that the documents were used exclusively to review Dr. Ghaphery’s credentialing and work within the hospital system and that the disclosure of such documents would chill the hospital’s candid evaluation process.

In evaluating the parties’ claims, the Supreme Court of Appeals of West Virginia determined that the line between documents that are privileged and documents that could be disclosed was a gray one. Accordingly, it sought to more clearly demarcate where the privilege should apply. First, it noted that clearly any data generated exclusively by or for a peer review organization was protected by the peer review privilege. Conversely, documents clearly produced for an alternative reason, but later reviewed or used by a peer review organization, were not protected by the privilege. In all other cases, the court held that “the origin of the document determines if it is privileged.” Thus, if the document was created exclusively by or for a review organization, the privilege applies. If not, the information is discoverable from the other sources from which it is obtained, but not from the peer review source itself.

Here, the court determined that, under the new test, some of the documents requested by Ms. Mills were privileged, since they were created by Wheeling Hospital’s review process itself. Others, the court held, required further consideration by the trial court to determine their origin and possible disclosure, based on how the documents were precisely used.

If you or a loved one has been hurt as a result of a medical mistake and are concerned about whether you will have full access to the documents you need, the Wolfe Law Firm can help. Our West Virginia personal injury lawyers have been serving clients throughout the state for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

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