Feb. 16, 2011 – Under tort reform provisions known as the Health Care Quality Improvement Act, Wisconsin health care providers have greater freedom to share information learned through peer reviews or evaluations of medical-related incidents that may later be the subject of litigation.
Many states, including Wisconsin, have statutes known as “peer review statutes,” which ensure the confidentiality of information learned in a medical peer review or evaluation.
Thus, if a health care provider conducts a peer review evaluation to determine the cause of complications during surgery, information learned through the peer review process would not be discoverable by a party suing the surgeon, anesthesiologist, or attending nurse for damages.
In the past, health care providers have been reluctant to release peer review reports to other health care providers for fear of civil liability. The revised statute gives health care providers and other related entities the authority to share information with protection from civil liability.
In addition, information learned in a peer review or evaluation is not subject to discovery requests in civil or criminal legal proceedings.
Recently, the Wisconsin Legislature revised Wis. Stat. section 146.38 as part of the tort reform legislation, effective Feb. 1, 2011. Section 146.38, originally enacted in 1975, deals with the confidentiality of information learned in peer reviews or evaluations of health care providers.
Revised section 146.38 prevents parties from introducing evidence obtained in peer reviews or evaluations in both civil and criminal cases. The former statute allowed such peer review records to be discovered in criminal actions. It also expands protections for health care providers and health care provider entities that share information with one another.
At the special session hearings in January, health care providers and associations voiced support for the proposed revisions to help improve the quality of health care in the state.
“In smaller hospitals and clinics, it is particularly important that providers have the opportunity to share performance across organizations without fear of the data being used for punitive purposes,” wrote Sharon Kostroski, vice president of quality and safety at Ministry Health Care.
A submission by the Wisconsin Hospital Association commented that health care providers are increasingly reluctant to share information learned through peer reviews, and such reluctance detracts from improving the quality of health care services to Wisconsin residents.
Individual rights organizations, such as Disability Rights Wisconsin and the Alzheimer’s Association, opposed the changes, arguing that inadmissibility of peer review and evaluation reports often deprives injured individuals of the ability to prove his or her case.
The reports often “contain much of the most relevant and probative information available on the injury and the circumstances that led to it,” wrote Tom Hlavacek, director for the Alzheimer’s Association.
Whatever the arguments on both sides, the Wisconsin Legislature and Gov. Scott Walker passed the Health Care Quality Improvement Act in January, and it took effect on Feb. 1, 2011. The following discusses some of the changes to section 146.38.
What information is confidential?
Any person, organization, or evaluator who reviews or evaluates health care providers for the purpose of improving the quality of health care, avoiding improper utilization of health care provider services, or to determine reasonable charges for health care services must keep a record of the inquiries, investigations, and proceedings.
Unlike the former statute, the revised provision makes clear that confidentiality hinges on whether the peer review or evaluation is conducted for the specific purposes listed above.
Any person who participates in such a review is prohibited from disclosing any information acquired in connection with such a review. That is, such peer review records or evaluations may not be released if a patient invokes his or her right to medical records associated with treatment or the records are otherwise requested through discovery.
Disclosures – other than ones allowed by the nondisclosure exceptions explained below, and through a good faith mistake – could result in civil liability. Unlike the former statute, confidentiality protection is not limited to personal injury cases only.
Not all records presented in peer reviews are immune
Documents or records presented during the review or evaluation are not necessarily immune from discovery in civil or criminal cases simply because they were presented as part of a peer review or evaluation. But “incident or occurrence reports,” a term that is new to section 146.38, are always immune from discovery in both civil and criminal cases.
Revised section 146.38 defines the term “incident or occurrence report” as written or oral statements concerning an incident, practice, or other situation that becomes the subject of a review or evaluation. Records from other persons, organizations, or evaluators reviewing or evaluating health care providers are also immune from discovery.
However, any person who participates in the review or evaluation may testify in civil and criminal proceedings as to matters within his or her knowledge if the information is not obtained through participation in the review or evaluation.
Exceptions to nondisclosure
In certain situations, information acquired in connection with the review or evaluation of health care services may be disclosed, but never for use as evidence in civil or criminal actions.
Such information may be disclosed, however, in criminal actions involving sexual exploitation by a therapist under section 895.441, but only to a court of record after issuance of a subpoena.
Records may also be disclosed to:
- the health care provider whose services are being reviewed if the provider so requests;
- any person who obtains the consent of the health care provider being reviewed; or
- the person requesting the review or evaluation to use solely for the purpose of improving health care quality, avoiding improper utilization of health care services, or determining reasonable charges for health care services.
Information acquired in connection with review and health care services of a health care provider may also be disclosed, with consent of the person authorizing the peer review or evaluation, to:
- the employer of a health care provider;
- the parent, subsidiary, or affiliate organization of a health care provider; or
- the parent, subsidiary, or affiliate organization of the employer of the health care provider.
The provisions allowing disclosure to parent, subsidiary, employer, and affiliate organizations of a health care provider are new and give organizations protection from civil liability when disclosing information to other related entities or health care groups.
Peer review or evaluation records may also be disclosed in statistical form with the consent of the person authorizing or with the authority to authorize the review or evaluation.
In these situations, the identity of any patient whose treatment is reviewed must be withheld, except as permitted under section 146.82 (confidentiality of patient health care records).
Regulatory health care reports not discoverable
Certain regulatory agencies, such as the Department of Regulation and Licensing, conduct quality assurance activities related to health care providers.
However, newly created Wis. Stat section 904.16 provides that any report that a health care provider is required to disclose to a regulatory agency – or any statements or records of interviews with health care provider employees related to the regulation of a health care provider – may not be used as evidence in a civil or criminal action.
Who is considered a health care provider?
The revised statute provides that “no person who participates in the review or evaluation of the services of health care providers or charges for such services may disclose an incident or occurrence report or any information acquired in connection with such review or evaluation.”
This rule is subject to the nondisclosure exceptions listed above, giving health care providers the ability to share information that results from peer reviews and evaluations.
The term “health care provider” expressly includes: licensed physicians, physician’s assistants, perfusionists, respiratory practitioners, nurses, chiropractors, podiatrists, pharmacists, optometrists, psychologists, dentists, physical therapists, athletic trainers, acupuncturists, social workers, marriage and family therapists, professional counselors, massage or bodywork therapists, occupational therapists, speech-language pathologists or speech therapists, audiologists, emergency medical technicians, and first responders.
Persons working under the supervision of or in collaboration with a health care provider, such as unlicensed resident doctors, are also considered health care providers for this purpose.
Unlike the former statute, the term “health care provider” also encompasses partnerships of health care providers, corporations or limited liability companies that provide health care services, cooperative health care associations, licensed hospices, inpatient health care facilities, community-based residential facilities, rural medical centers, and ambulance service providers.
Parent, subsidiary, or affiliate organizations of these types of health care entities are also considered “health care providers” in the sense that such entities cannot be forced to disclose peer review or evaluation information for the purpose of civil or criminal actions, and will not be held civilly liable for any damage that results from proper disclosure to other related entities.
Revised section 146.38 expressly defines who is considered a health care provider, and what peer review or evaluation information is not discoverable in both civil and criminal actions.
Incident or occurrence reports, a term that was not used in the former statute, are not discoverable. But that does not mean that all information presented in a peer review or evaluation is protected from discovery requests.
In addition, a person with personal knowledge of an incident or occurrence is not barred from testifying about the incident or occurrence simply because they are a participant in the peer review or evaluation process.
Finally, the new provision gives health care providers greater protection when sharing peer review and evaluation information with other related health care providers or entities.
By Joe Forward, Legal Writer, State Bar of Wisconsin