Board May Review Portions Of Credentialing File
The Massachusetts Supreme Judicial Court remanded a case involving possible misconduct by a physician. The issue related to access to the physician’s credentialing file, which the Board of Registration in Medicine had sought but the trial court had held was protected by privilege.
The relevant facts:
Following a patient complaint, the disciplinary unit of the board initiated an investigation of Dr. Doe. In the course of theinvestigation, the board “developed information” that suggested thatDr. Doe “fraudulently procured renewal of his medical license byfailing to report criminal charges on his license renewalapplications,” and which “requir[ed an] investigation of whether Dr.Doe has practiced medicine while the ability to practice medicine isimpaired by alcohol or drugs.” Pursuant to statutory authorization to compeldocument production “at any stage of an investigation,” the board issued subpoenas to each of the hospitals onFebruary 13, 2007, seeking documents related to Dr. Doe’scredentialing, employment, and competence to practice medicine, as wellas incident reports and complaints related to him.
Hallmark Health Corporation is the parent of Hallmark System, Inc., alicensed hospital facility whose “campuses” include the formerMelrose-Wakefield and Lawrence Memorial Hospitals (collectively,Hallmark). The information sought from Hallmark by the board is locatedin Dr. Doe’s credentialing files, which Hallmark maintains pursuant tothe requirement that all hospitals have a “qualified patient careassessment program” (QPCAP) to address, among other things, thecredentialing of medical staff members. Under Hallmark’s medical staff credentialing policy, physiciansseeking clinical privileges at Hallmark must apply for an initialappointment and must apply for reappointment at periodic intervals nogreater than two years thereafter. An applicant for an initialappointment must provide, among other things, information about prioreducation, training, experience, and licensure, as well as potentiallynegative information, including whether the applicant has ever been acriminal defendant, lost a professional license, had clinicalprivileges withdrawn, or been involved in any professional misconductproceedings. For reappointment, an applicant must provide, among otherthings, information about compliance with Hallmark’s rules, continuingqualifications, pending malpractice challenges or challenges tolicensure, and any limitation, reduction, or loss of clinicalprivileges. In addition to information supplied by the physician, anyincident reports or complaints involving the particular physicianbecome part of the physician’s credentialing file. (citations omitted)
Hallmark Health Corporation is the parent of Hallmark System, Inc., alicensed hospital facility whose “campuses” include the formerMelrose-Wakefield and Lawrence Memorial Hospitals (collectively,Hallmark). The information sought from Hallmark by the board is locatedin Dr. Doe’s credentialing files, which Hallmark maintains pursuant tothe requirement that all hospitals have a “qualified patient careassessment program” (QPCAP) to address, among other things, thecredentialing of medical staff members. Under Hallmark’s medical staff credentialing policy, physiciansseeking clinical privileges at Hallmark must apply for an initialappointment and must apply for reappointment at periodic intervals nogreater than two years thereafter. An applicant for an initialappointment must provide, among other things, information about prioreducation, training, experience, and licensure, as well as potentiallynegative information, including whether the applicant has ever been acriminal defendant, lost a professional license, had clinicalprivileges withdrawn, or been involved in any professional misconductproceedings. For reappointment, an applicant must provide, among otherthings, information about compliance with Hallmark’s rules, continuingqualifications, pending malpractice challenges or challenges tolicensure, and any limitation, reduction, or loss of clinicalprivileges. In addition to information supplied by the physician, anyincident reports or complaints involving the particular physicianbecome part of the physician’s credentialing file. (citations omitted)
The court held:
Indetermining whether a medical peer review privilege applies in aparticular circumstance, we look to “the way in which a document wascreated and the purpose for which it was used, not … its content.” Carr v. Howard, supra at 531. Therefore, the proper inquiry as to whether a document qualifies for protection under § 204 (a ) is whether it was created “by, for, or otherwise as a result of a ‘medical peer review committee.’ ” Miller v. Milton Hosp. & Med. Ctr., Inc.,54 Mass.App.Ct. 495, 499 (2002). Under that formulation, while the workproduct of the various committees involved in credentialing atHallmark–e.g., minutes from meetings, reports, or recommendationsgenerated by or for the committees–are protected by § 204 (a ), documents used by such committees are not necessarily similarly protected. See Carr v. Howard, supra at 522 n. 7 (asserting privilege of § 204 without reliance on § 205 requires evidence that materials sought “were notmerely ‘presented to [a] committee in connection with its proceedings,’… but were, instead, themselves, ‘proceedings, reports and records’ of a peer review committee under § 204 [a ]” [emphasis in original] ); Beth Israel, supraat 183 (“Section 204 does not protect information generated by othercomponents of the QPCAP system or the ‘raw materials’ relied on by a[peer review committee] if obtained from other sources”).
We remand the case to the Superior Court for an individualizedconsideration whether each of the documents listed on Hallmark’sprivilege log is protected by either § 204 (a ) or § 205 (b ), bearing in mind that the burden is on Hallmark to establish that each document is privileged.
We remand the case to the Superior Court for an individualizedconsideration whether each of the documents listed on Hallmark’sprivilege log is protected by either § 204 (a ) or § 205 (b ), bearing in mind that the burden is on Hallmark to establish that each document is privileged.
The case is Board of Registration in Medicine v. Hallmark Health Corporation, decided today. (Mike Frisch)
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