Court holds not all of Dr.'s personnel file is privileged.

THIS CASE AROSE OUT OF THE MASSACHUSETTS BOARD OF MEDICINE'S INVESTIGATION OF A COMPLAINT AGAINST A PHYSICIAN EMPLOYED BY HALLMARK HEALTH CORPORATION (HALLMARK). The case suddenly became one which has ramifications for all hospitals within and without the state of Massachusetts when the physician's employer refused to disclose any information in the physician's personnel file, including material that was and was not subject to the peer review privilege.

IN RESPONSE TO A PATIENT'S COMPLAINT, THE BOARD SOUGHT TO ORDERED. HALLMARK TO PRODUCE ITS FILES ON DR. JOHN DOE. After twice ordering Hallmark to produce Dr. Doe's personnel file, without Hallmark's compliance, the Superior Court judge changed course and agreed with Hallmark that the materials sought were protected by the "medical peer review privilege." The trial judge ordered that summary judgment be entered in favor of Hallmark. The Board appealed. On the hospitals' application for direct appellate review, the Supreme Judicial Court of Massachusetts was asked to determine whether the Board could access information contained in a physician's credentialing files prior to the commencement of an adjucicatory proceeding against the physician. The court summarized the facts from the trial judge's memorandum of decision and from undisputed facts in the record. Following a patient complaint, the disciplinary unit of the Board initiated an investigation of Dr. Doe. In the course of its investigation, the Board "developed information" that suggested that Dr. Doe "fraudulently procured renewal of his medical license by failing to report criminal charges on his license renewal applications," and which "required an] investigation of whether Dr. Doe had practiced medicine while the ability to practice medicine was impaired by alcohol or drugs." Pursuant to statutory authorization to compel document production "at any stage of an investigation," the Board issued subpoenas to each of the hospitals operated by Hallmark on February 13, 2007, seeking documents related to Dr. Doe's credentialing, employment, and competence to practice medicine, as well as incident reports and complaints related to him. Hallmark Health Corporation, the parent of Hallmark Systems, Inc., a licensed hospital facility whose "campuses" include the former Melrose-Wakefield and Lawrence Memorial Hospitals (collectively, Hallmark). The Superior Court ruled that the records which were sought by the Board were protected by the peer review privilege. The Board appealed.

THE SUPREME JUDICIAL COURT OF MASSACHUSETTS REVERSED THE SUPERIOR COURT'S ORDER FOR SUMMARY JUDGMENT FOR HALLMARK AND REMANDED THE CASE BACK TO SUPERIOR COURT FOR FURTHER ACTION NOT INCONSISTENT WITH ITS DECISION. The court held, inter alia, that the case be remanded to the Superior Court for an individualized consideration whether each of the documents listed on Hallmark's privilege log was protected by privilege. Further, the court ruled that the burden of establishing the fact that a particular document was protected by privilege was on Hallmark. The court concluded that the information provided in Hallmark's privilege log appeared to be insufficient to allow a determination as to which, if any, of the material in Dr. Doe's credentialing files merited protection by virtue of the privilege rule.

STRONG PUBLIC POLICY MANDATES THE HIGHEST QUALITY OF CARE IN OUR HEALTH CARE FACILITIES. That public policy finds voice in, among others, a strict regulatory scheme, covering virtually all aspects of hospital operations. The Board had the primary responsibility within that scheme for regulating the practice of medicine in order to promote the public health, welfare, and safety. Consequently, the Board has broad authority to regulate the conduct of the medical profession. Among other things, the Board protects the "strong public interest in promptly disciplining errant physicians." Also "[i]ntegral" to the regulatory scheme is "an effective process for self-scrutiny, manifest[ed] most prominently in the medical peer review process." The court concluded that its decision was consistent with the strong public policy protecting the confidentiality of peer review. While certain materials related to credentialing should be available to the Board, they remain shielded from the general public. The court observed that the peer review privilege, in pertinent part, provides that "the proceedings, reports and records of a medical peer review committee" shall be "confidential" and "shall not be subject to subpoena or discovery" except in "proceedings held by [the Board]." Because the law "promotes the uninhibited expression of professional opinions before a [peer review committee] and protects the [peer review committee's] work product," the court concluded, the law did not protect the "raw materials" relied on by a [peer review committee] if obtained from other sources. Board of Registration in Medicine v. Hallmark Health Corp, 2009-MA-SJC10297 (8/11/2009) N.E.2d--MA

A. David Tammelleo JD Editor & Publisher

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World.