Board May Review Portions Of Credentialing File

The Massachusetts Supreme Judicial Court remanded a case involving possible misconduct by a physician. The issue related to access to the physician's credentialing file, which the Board of Registration in Medicine had sought but the trial court had held was protected by privilege.

The relevant facts:

Following a patient complaint, the disciplinary unit of the board initiated an investigation of Dr. Doe. In the course of the 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 "requir[ed an] investigation of whether Dr. Doe has practiced medicine while the ability to practice medicine is 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 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 is the parent of Hallmark System, Inc., a licensed hospital facility whose "campuses" include the former Melrose-Wakefield and Lawrence Memorial Hospitals (collectively, Hallmark). The information sought from Hallmark by the board is located in Dr. Doe's credentialing files, which Hallmark maintains pursuant to the requirement that all hospitals have a "qualified patient care assessment program" (QPCAP) to address, among other things, the credentialing of medical staff members. Under Hallmark's medical staff credentialing policy, physicians seeking clinical privileges at Hallmark must apply for an initial appointment and must apply for reappointment at periodic intervals no greater than two years thereafter. An applicant for an initial appointment must provide, among other things, information about prior education, training, experience, and licensure, as well as potentially negative information, including whether the applicant has ever been a criminal defendant, lost a professional license, had clinical privileges withdrawn, or been involved in any professional misconduct proceedings. For reappointment, an applicant must provide, among other things, information about compliance with Hallmark's rules, continuing qualifications, pending malpractice challenges or challenges to licensure, and any limitation, reduction, or loss of clinical privileges. In addition to information supplied by the physician, any incident reports or complaints involving the particular physician become part of the physician's credentialing file. (citations omitted)

The court held:

In determining whether a medical peer review privilege applies in a particular circumstance, we look to "the way in which a document was created and the purpose for which it was used, not ... its content." Carr v. Howard, supra at 531. Therefore, the proper inquiry as to whether a document qualifies for protection under § 204 (a ) is whether it was created "by, for, or otherwise as a result of a 'medical peer review committee.' " Miller v. Milton Hosp. & Med. Ctr., Inc., 54 Mass.App.Ct. 495, 499 (2002). Under that formulation, while the work product of the various committees involved in credentialing at Hallmark--e.g., minutes from meetings, reports, or recommendations generated by or for the committees--are protected by § 204 (a ), documents used by such committees are not necessarily similarly protected. See Carr v. Howard, supra at 522 n. 7 (asserting privilege of § 204 without reliance on § 205 requires evidence that materials sought "were not merely 'presented to [a] committee in connection with its proceedings,' ... but were, instead, themselves, 'proceedings, reports and records' of a peer review committee under § 204 [a ]" [emphasis in original] ); Beth Israel, supra at 183 ("Section 204 does not protect information generated by other components of the QPCAP system or the 'raw materials' relied on by a [peer review committee] if obtained from other sources").

We remand the case to the Superior Court for an individualized consideration whether each of the documents listed on Hallmark's privilege log is protected by either § 204 (a ) or § 205 (b ), bearing in mind that the burden is on Hallmark to establish that each document is privileged.

The case is Board of Registration in Medicine v. Hallmark Health Corporation, decided today. (Mike Frisch)