TN Court: Peer Review Protection Doesn't Include Coercion, Suborning Perjury
Recently, a Tennessee Appeals Court disallowed peer review protection concerning testimony of a nursing home CNA who claimed she was told during a QI meeting to change the records to make it appear that her nursing home employer did not have time to take corrective action before a resident experienced a second fall. The court stated, "We cannot accept that it was the intent of our General Assembly to allow healthcare providers to use a QIC meeting as a shield to commit such acts as suborning perjury and then hide or cover up those bad acts by claiming peer privilege." The case is Reynolds v Life Care Centers, and here is the appellate court's ruling.
I find this ruling very interesting on multiple levels.
First, the ruling is coming from Tennessee, a deep red state with several tort reform protections for the healthcare community. Second, how often do patients, families, and plaintiff's lawyers claim the entire notion of secrecy involving peer review is nothing more than an excuse for doctors and nurses to get their story straight? This case is on point with these historical concerns, and a court from a conservative state called out a healthcare defendant. Third, secrecy, whether it is with peer review or anything else related to a patient or family, runs contrary to the principles of the disclosure movement.
How do you from an ethical standpoint say your hospital or nursing home believes in transparency, we do disclosure and apology, etc, but then claim something about the patient or family is secret and off limits? It's not only contradictory, it's potentially maddening for patients and families. As Lucian Leape, MD and others have stated, "Nothing about me without me."
Now, I understand why people -- including highly ethical people -- feel the need for certain conversations to remain in private. Each of us does it in our daily lives when discussing certain issues with certain people (and we don't want other people to know the content of those conversations or discussions!). I get it. However, it's one thing when, for example, two youth sports coaches don't want a third coach to know they think his son stinks at soccer versus medical care that led to serious injury or death. Moreover, the situation is compounded by the reality that medicine has a historical track record of covering up errors. This Reynolds v Life Care Centers case confirms the long-held suspicions of patients, family, and PI lawyers everywhere.
Now, ethical doctors and nurses can make a strong argument that robust discussions which improve patient safety for an entire healthcare organization (hospital, nursing home, etc) can only happen in confidence. Absent the privacy, discussions will not be frank and patient safety will suffer, they will argue. True, but there is still the reality of this one patient/one family who wants to know everything about their case.
The optics around peer review need to be re-evaluated in this age of disclosure and apology. I don't have all the answers. I know this is a complicated subject. However, an appellate court in Tennessee gave us a reminder we need to do better.
What do you think?
Doug Wojcieszak, Founder
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