24 April 2015

Krusac v Covenant Medical Center, Inc., the Michigan Supreme Court Reinforces the Peer Review Privilege

On April 21, 2015, the Michigan Supreme Court issued its long awaited opinion in Krusac v Covenant Medical Center, Inc. In Krusac, a patient rolled off an operating table after a procedure and subsequently died. The patient’s estate filed a medical malpractice case, and sought discovery of an incident report that was generated shortly after the incident. The trial court ordered the hospital to produce the objective facts found in the report pursuant to the Michigan Court of Appeals’ decision in Harrison v Munson Healthcare, Inc., 304 Mich App 1 (2014).

In a 6-0 opinion (Justice Bernstein did not participate), the Supreme Court overruled Harrison. The Court held that the Michigan Peer Review Statute protects all “records,” “data,” and “knowledge”—key terms in the peer review statutes— contained in privileged reports, including objective facts gathered contemporaneously with an event.

Key Takeaways

  • Contemporaneously gathered facts are privileged provided they are gathered by or for a peer review committee for the purpose of improving patient care
  • The Michigan Peer Review Statute imposes a comprehensive ban on the disclosure of peer review materials
  • A healthcare provider’s obligation to perform peer review functions is distinct from its duty to make a full and complete medical record
  • Litigants can still learn the facts of an incident from the medical records and by questioning witnesses, even the author of a privileged incident report
  • Healthcare providers should review their bylaws, policies, and procedures to ensure they clearly identify the peer review process and which committees are assigned a professional review function. Future courts will likely scrutinize a healthcare provider’s bylaws and internal regulations when determining whether the peer review privilege applies.
  • Healthcare providers should educate peer review participants on their peer review bylaws, policies, procedures, and responsibilities. Providers who fail to follow appropriate peer review procedures risk having a court determine that the privilege does not apply.

If you have any questions about this decision, please contact the authors or a member of the Health Care Providers practice group.