In a case of first impression, AARP filed an amicus brief in the South Dakota Supreme Court advocating for the Court to recognize a crime-fraud exception to the medical peer review privilege in circumstances where the peer review committee engaged in malice or fraud. Peer review is the process by which the medical profession evaluates the services and qualifications of physicians as a means to improve the quality of health care. Peer review materials are often protected from disclosure by a legal privilege to encourage participants to engage in rigorous quality assurance without fearing retaliation.
The plaintiffs allege that hospital peer review committees gave staff privileges to a spine surgeon who they knew was unfit to practice medicine because they wanted the profit he could bring. The spine surgeon then caused patients to suffer debilitating spinal injuries by performing surgeries that were medically unnecessary and poorly performed. The injured patients later sued the surgeon, the hospitals, and members of the peer review committees. During the litigation, the hospitals and peer review committee members refused to produce information from the peer review committees because they claimed it was privileged.
What’s at Stake
In our brief, AARP argues that the fundamental purpose of the peer review privilege is eroded when medical professionals use it not to improve the quality of health care, but to avoid accountability for their wrongful conduct. The crime-fraud exception remedies this abuse by allowing a limited waiver of the privilege under egregious circumstances where the injured patients can first prove that the peer review committee members engaged in fraud or malice. AARP also noted that older adults are particularly vulnerable to hospitals’ physician credentialing and retention decisions because of their high use of hospital services. Without the crime-fraud exception, older adults are prevented from obtaining evidence necessary to prove their case when they are harmed by a hospital’s or peer review committee’s intentional decision to hire an incompetent physician. Thus, the integrity of the peer review process is preserved when the privilege is only applied in cases where it furthers the quality of health care. Maame Gyamfi argued on behalf of AARP.
Novotny v. Sacred Heart Health Services is before the Supreme Court of South Dakota.