The Health Care Peer Review Process
Hospitals, physician groups, and medical offices of all sizes can (and should) use a peer review process to address and improve patient care. The Legislature has recognized the importance of the peer review process through statutes that prevent dissatisfied patients from using well-intentioned reviews to advance medical malpractice suits. However, to keep internal investigations or reviews protected from disclosure, organizations must follow certain procedures. Otherwise, malpractice plaintiffs’ attorneys will turn efforts to improve patient care against health care providers.
What Is A Peer Review Committee?
A peer review committee evaluates health care providers’ qualifications, patient care, the merits of complaints against a health care provider, and the reasonableness of services, procedures, and facilities, The committee must be organized in compliance with statutory requirements, and at least half of the committee members must be individual health care providers or a hospital’s governing board.
What Is Protected?
In general, all peer review committee proceedings and all communications made to the committee are confidential (except with respect to a provider’s disciplinary authority and licensing or medical boards) and not admissible as evidence in Indiana state courts. This protection extends to opinions of committee members, discussions among members, documents created during deliberations, determinations of the committee, and the peer review process itself. These protected discussions include informal and private discussions of peer review committee members and notes of the proceedings. The only generally unprotected aspect of the peer review process is the final action. In other words, what a committee decides is public, but how or why it reached its conclusion is private.
III. What is not protected?
A. Information available elsewhere
Although information generated by the peer review committee is protected, information cannot be protected simply by providing it to the peer review committee. That is, information that is used or reviewed by a peer review committee, but is also available elsewhere, does not gain protection because a peer review committee reviews it.
B. Federal lawsuits
If a plaintiff finds an avenue to bring a claim in federal court (e.g., antitrust or civil rights claims), the Indiana statutes rendering peer review materials confidential may not apply. Most medical malpractice plaintiffs must file their claims in state court, so the federal law exceptions should not serve as a significant deterrent to conducting a peer review process in a typical case. However, before reviewing a matter that may have implications that extend beyond ordinary medical malpractice, an organization should consult with its attorney to assess the risk of the process becoming public.
C. Limited exceptions outside of federal court
Although the statutory privilege protects all statements made within the peer review process, the privilege does not extend to statements that bear no relation to the purposes of the peer review committee. For example, discussions relating to contractual relationships with physicians that are unrelated to the provider’s qualifications, patient care, or use of services, procedures, or facilities, have no protection.
If the peer review committee commits fraud or a crime, the privilege will not attach. However, a person may not obtain access to peer review records by making an unsupported allegation of criminal or fraudulent activity. Instead, a person must come forth with evidence supporting his or her allegation before the protections of privilege and confidentiality will cease.
The Attorney General may obtain records from the peer review committee to further an investigation into an alleged violation of the Health Professions Standards of Practice as long as the records are not communications to, records of, or determinations of a peer review committee.
D. Individual health care providers’ rights to review their own proceedings.
When a hospital brings charges against a health care provider, that provider is entitled to an evidentiary hearing before a peer review committee and an appeal to the hospital’s governing board. A health care provider who is under investigation may see records gathered by a peer review committee relating to that provider’s practice.
Although the Indiana General Assembly has provided important protections that allow health care organizations to conduct a peer review process that focuses on the betterment of patient care without fear of retaliation, health care providers must understand the requirements of the statutes to take advantage of their protections. Therefore, a providers should not only take the time to review their general peer review practices, but also consult their attorney when situations arise in which litigation appears likely.
 Ind. Code § 34-6-2-44 (defining “evaluation of patient care”); Ind. Code § 34-6-2-99(a)(1) (defining “peer review committee”); Mulder v. Vankersen, 637 N.E.2d 1335, 1338 (Ind. Ct. App. 1994) (discussing predecessor statute), trans. denied; Cmty. Hosps. of Indianapolis, Inc. v. Medtronic, Inc., Neuro Div., 594 N.E.2d 448, 452 (Ind. Ct. App. 1992).
 Ind. Code § 34-6-2-99(b)(2)(B); Mulder, 637 N.E.2d at 1338.
 Ind. Code § 34-30-15-1(a), (b); Parkview Mem’l Hosp., Inc. v. Pepple, 483 N.E.2d 469, 470 (Ind. Ct. App. 1985), trans. denied.
 Linton v. Davis, 887 N.E.2d 960, 969 (Ind. Ct. App. 2008), trans. denied; Fridono v. Chuman, 747 N.E.2d 610, 618-19 (Ind. Ct. App. 2001), trans. denied; Frank v. Trustees of Orange County Hosp., 530 N.E.2d 135, 137 (Ind. Ct. App. 1988).
 Mulder, 637 N.E.2d at 1339; Ray v. St. John’s Health Care Corp., 582 N.E.2d 464, 471 (Ind. Ct. App. 1991), trans. denied.
 Linton, 887 N.E.2d at 969.
 Fridono v. Chuman, 747 N.E.2d 610, 616 n.9 (Ind. Ct. App. 2001) (“Hospital may not insulate itself from judicial review simply by stamping the words ‘Privileged Peer Review Material’ on its files.” (quoting Ray v. St. John’s Health Care Corp., 582 N.E.2d 464, 474 (Ind. Ct. App. 1991), trans. denied)), trans. denied.
 Ind. Code § 34-30-15-3(a); Terre Haute Reg’l Hosp., Inc. v. Basden, 524 N.E.2d 1306, 1312 n.4 (Ind. Ct. App. 1988).
 Lisa Nijmal, Pitfalls of Peer Review, 24 J. Legal Med. 541, 542 (2003); Lewis v. County of Henry, 2006 WL 1843336 at *2 (S.D. Ind. 2006); Mattice v. Mem’l Hosp. of S. Bend, 203 F.R.D. 381, 385 (N.D. Ind. 2001); United States ex rel. Roberts v. QHG of Indiana, Inc., 1999 WL 33243495 at *4 (N.D. Ind. 1999); Schafer v. Parkview Mem’l Hosp., Inc., 593 F.Supp. 61, 65-66 (N.D. Ind. 1984).
 Frank, 530 N.E.2d at 138
 Ray, 582 N.E.2d at 472.
 Ray, 582 N.E.2d at 473.
 Terre Haute Reg’l Hosp., Inc. v. Basden, 524 N.E.2d 1306, 1310 (Ind. Ct. App. 1988).
 Basden, 524 N.E.2d at 1310.
 Basden, 524 N.E.2d at 1310.
 Ind. Code § 34-30-15-2.
 Ind. Code § 34-30-15-5(b).
 Ind. Code § 34-30-15-4(a); Frank, 530 N.E.2d at 138.