Alaska Supreme Court Discusses Medical Peer Review Privilege Statute In Disallowing Discovery In Two Medical Malpractice Cases

The Supreme Court of the State of Alaska (“Alaska Supreme Court”) stated in its its opinion filed on September 14, 2018: “Alaska’s medical peer review privilege statute, AS 18.23.030, protects discovery of data, information, proceedings, and records of medical peer review organizations, but it does not protect a witness’s personal knowledge and observations or materials originating outside the medical peer review process. A hospital invoked the privilege in two separate actions, one involving a wrongful death suit against a physician at the hospital and the other involving both a medical malpractice claim against the same physician and a negligent credentialing claim against the hospital. In each case the superior court compelled the hospital to disclose materials related to complaints submitted about the physician and to the hospital’s decision to grant the physician medical staff membership. The hospital and the doctor sought our review of the discovery orders. Because we conclude that these discovery orders compel the hospital to disclose information protected by the peer review privilege, we reverse the discovery orders in part. We further hold that the false information exception to the privilege provided in AS 18.23.030(b) applies to actions for which the submission of false information is an element of the claim and thus does not apply here.”

Medical Peer Review Privilege Statutes

Medical peer review refers to the process hospitals use to oversee medical staff to improve patient care, reduce hospital liability, and purportedly lower rates for medical malpractice insurance. Generally, the stated purpose of affording an evidentiary privilege to peer review materials is to promote candor in peer review proceedings, with the aim of more rigorous oversight of medical care and lower medical malpractice insurance premiums. Nearly all hospitals employ peer review procedures and almost all 50 U.S. states have adopted peer review laws that (1) provide immunity from liability for persons serving on or providing information in good faith to peer review committees, and (2) create an evidentiary privilege for certain materials related to the peer review process.

Alaska’s Medical Peer Review Privilege Statute

Alaska’s medical peer review privilege statute, AS 18.23.030, was enacted in 1976 as part of a broad, comprehensive bill with the stated intention to address the lack of malpractice insurance available to Alaska doctors. The Alaska medical peer review privilege statute restricts discovery of information and data acquired by medical peer review organizations, along with the proceedings and records of those organizations. The privilege is subject to certain exceptions, including materials “otherwise available from original sources” or information within an individual’s personal knowledge, and materials provided to a peer review organization that are alleged to contain knowingly false information. Disclosing privileged information is a misdemeanor.

In deciding the two cases before it, the Alaska Supreme Court stated: “Exercising our independent judgment, we conclude that the plain language of AS 18.23.030(a) supports a broader construction of the privilege that protects complaint-related materials contained in peer review committee files, even if those materials were not generated by the peer review committee but rather originated outside the peer review process. In reaching this conclusion we are mindful that an evidentiary privilege should be construed narrowly, but we conclude that the text of AS 18.23.030(a) does not support a narrower interpretation of the peer review privilege than that which we reach here. Complaint-related materials contained in peer review committee files, the identities of the individuals reporting and reviewing the complaints, and any internal action taken in response satisfy the requirements for the privilege to apply.”

The Alaska Supreme Court rejected the Alaska medical malpractice plaintiffs’ argument that the defendant hospital must nevertheless provide the materials they seek because the privilege specifically excludes from protection “[i]nformation, documents, or records otherwise available from original sources” or matters within an individual’s “person[al] knowledge,” even if those materials were presented during or were the subject of testimony at review organization proceedings. The Alaska Supreme Court stated: “this argument views the limitation on the privilege in a vacuum, without regard for the broad privilege outlined in the plain text of the preceding two sentences. The first sentence prohibits a review organization from revealing the information and data it acquires; the second sentence protects a review organization’s deliberations. Reading the limitation in the third sentence in conjunction with the broad protection in these first two sentences suggests that the limitation permits a litigant to obtain the original information or personal knowledge only from outside sources. In other words, it limits the avenue of discovering this information to the original source or the individual with personal knowledge. A contrary interpretation allowing a peer review committee or a committee member to be compelled to disclose such original source information would eviscerate the peer review privilege’s protection for all data and information acquired by the committee and for the committee’s deliberations. It would also render meaningless the limitation’s requirement that the materials be “otherwise available” from other sources. Therefore, this limitation does not require the peer review committees … to divulge any materials related to concerns or complaints about [the defendant doctor], even if the materials were obtained from an original source outside the peer review process … We interpret this limitation to permit discovery of original source information only from the original source or the individual with personal knowledge. The limitation does not require a peer review committee or its members to disclose these materials.”

False Information Exception In AS 18.23.030(b)

The Alaska Supreme Court stated that under the false information exception, a plaintiff who claims that information provided to a review organization was false and claims that the person providing the information knew or had reason to know the information was false may obtain, by subpoena or discovery proceedings, evidence otherwise privileged under subsection (a). The Alaska Supreme Court concluded, however, “[t]he false information exception applies to plaintiffs bringing claims for which the submission of false information is an element. Since none of the claims at issue contain the submission of false information as an element, neither [plaintiff] qualifies as a plaintiff within the meaning of the false information exception.”


If you or a loved one may be the victim of medical malpractice in Alaska or in another U.S. state, you should promptly consult with an Alaska medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Wednesday, November 21st, 2018 at 5:30 am. Both comments and pings are currently closed.

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