Health Law Monitor
Supreme Court of Appeals of West Virginia Upholds Peer Review Privilege
June 16, 2023
The Supreme Court of Appeals of West Virginia issued a new opinion affirming the ban on discovery and use of peer review under West Virginia Code §30-3C-3. In an opinion by Justice Bunn in Toler v. Cornerstone Hospital of Huntington, No. No. 21-0830 (June 15, 2023), the Court held that the trial court correctly ruled that the plaintiff was not entitled to obtain an incident report related to a fall because it was prepared for the purpose of peer review.
While visiting his girlfriend who was hospitalized at Cornerstone, Toler, after sleeping in a chair, got up, fell, and fractured his femur. Plaintiff claimed he slipped on a roll of tape on the floor. The nurses at Cornerstone reported plaintiff said “his leg gave way and that he thought it was a charley horse.” One of the Cornerstone nurses submitted an incident report on the event. Plaintiff sued and sought production of the incident report arguing that it would show the nurse reported he slipped on tape. Cornerstone objected under the peer review privilege, W.Va. Code §30-3C-3, and the circuit court “agreed with Cornerstone’s claim of peer review privilege and precluded disclosure.” The case went to trial and the nurse testified what Toler told her after he fell and did not refer to a roll of tape. After the jury found for Cornerstone and plaintiff appealed, arguing the circuit court should have ordered production of the incident report in the first place, and again, when Cornerstone “opened the door” during trial.
The Supreme Court reviewed the circuit court’s order which found “the Occurrence/Incident Report which was prepared by a nurse and reviewed by the Director of Quality Management falls squarely within the statutory requirements [of the peer review privilege statutes]” because it “was prepared to report a non-routine event that had some potential for injury to a patient or visitor and was intended to help ensure that quality health care is rendered at the hospital by identifying and correcting any problems related to nonroutine occurrences.” Tolder “status of a non-patient is irrelevant with regard to the applicability of the peer review privilege in this instance.” Finding the circuit court did not abuse its discretion, the Supreme Court held “[a]ll of these findings are consistent with the Legislature’s recognition of a peer review privilege in West Virginia Code § 30-3C-3.”:
The circuit court properly ruled that the peer review privilege does not except certain types of cases from its application. The court further found that the incident report had been prepared exclusively for Cornerstone’s internal review process and that the report had been used solely in that review process and not disclosed or disseminated outside of Cornerstone’s internal review.
As to the claim that Cornerstone “opened the door” by having its employees testify about the incident and what Toler told them, the Court first found Toler waived any objection by not opposing Cornerstone’s motion to preclude reference to privileged materials. “By virtue of Mr. Toler’s failure to object to the exclusion of testimony about and references to privileged material, including Cornerstone’s incident report, from the trial, Mr. Toler has waived his objection to the circuit court’s exclusion of testimony about and references to the incident report at trial.” The fact that the nurse who authored the incident report testified did not waive the peer review privilege because it “permits the disclosure of original source information without defeating the assertion of the privilege.” Nor did testimony of a Cornerstone representative about the incident report process “open the door.” The Court stated, “Mr. Toler elicited that information during his counsel’s direct examination of Nurse Gagnon. As the party who prompted Nurse Gagnon’s disclosure of the incident reporting process, Mr. Toler is not entitled to benefit from the purportedly improper reference to the incident report he occasioned. Therefore, we find that Mr. Toler is not entitled to relief on this basis.” Last, the circuit court’s response to the jury’s asked a question about the incident report and was instructed that it had all relevant evidence was appropriate and the question did not require production and admission of the privileged report.
Justice Walker, joined by Justice Wooton, dissented, stating
The majority opinion has taken that shield and cobbled a fortification wall at its edges to build a fortress surpassing even the bounds of the Legislature’s sweeping protections. The majority opinion would prompt any reasonable lawyer to counsel hospitals to jam any adverse event that occurs within its walls into a document purported to “better healthcare,” and filter it through a “review organization” thereby shielding non-patient care related facts from discovery. Because the majority has not applied the statute to these facts beyond blind deference to the circuit court that far exceeds both the scope of the statutory language and the purpose of the peer review privilege, I respectfully dissent.
This is an important decision because it protects as privilege reports of incidents, allowing health care providers to candidly investigate and assess risk with the object of improving care without fear of disclosure in discovery in a later civil action.