Clinical Peer Review or Medical Peer Review is a process by which healthcare professionals evaluate each other’s clinical performance.  It is commonly done in hospitals in order to improve the quality and safety of care.  It may also serve to reduce the hospital’s potential malpractice liability and ensure that healthcare practitioners are competent and practice within the boundaries of professionally accepted norms.

Bearing in mind that the context of any records of, documents for and minutes of a peer review meeting  are, under South African law, generally not privileged and protected from disclosure where those documents are relevant to issues in dispute in a medical malpractice claim, a significant tension exists between the benefits and ethics of conducting peer reviews, the protection of confidentiality, and a patient’s right to access of information. 

It is a tricky balancing act, and it is appropriate to consider whether some form of peer review protection is required by way of statute. 

Other jurisdictions recognise the competing rights and benefits of peer review statutes which provide that “the investigations, proceedings and records of that peer review committee are not subject to discovery or introduction into evidence in any civil litigation against a provider of professional health services arising out of matters that are the subject of evaluation and review”.

The privilege provides for “that degree of confidentiality necessary for the full, frank medical peer evaluation which the legislature sought to encourage.”

The question of peer review privilege was recently considered by the Florida Court of Appeal in Philip Regala v Michael McDonald.

That court referenced a previous judgment:

“This privilege extends not only to documents created by the board, but to “any document considered by the committee or board as part of its decision-making process.”  However, documents “otherwise available from original sources are not to be construed as immune from discovery . . . merely because they were presented during proceedings of such board.” § 395.0191(8). In other words, a document that “a party secures from the original source is not privileged merely because it was presented during peer review committee or board proceedings.”