In a Delaware medical malpractice case where the plaintiff suffered a stroke during neurosurgery on his brain, the plaintiff alleged that defendant Christiana Care Health Services, Inc. (“CCHS”) was aware of defendant Bikash Bose, M.D.’s (“Bose”) propensity to commit negligent surgeries (Bose allegedly had been named as a defendant in thirty-one medical negligence lawsuits and CCHS had been named as a co-defendant in fifteen of them) yet CCHS allegedly never took any action to limit Dr. Bose’s credentials or recommended any corrective action as to Dr. Bose. The plaintiff sought in discovery information about any peer review meetings held concerning Dr. Bose and multiple pieces of information surrounding the creation, membership, meeting dates and results of any such peer review meetings, but CCHS declined to respond to many of the requests, citing the peer review privilege.
Delaware’s Peer Review Privilege
24 Del. C. § 1768(a) gives the members of any group “whose function is the review of medical records, medical care, and physicians’ work, with a view to the quality of care and utilization of hospital or nursing home facilities” immunity from liability for any acts done or not done, “or from any recommendation made, so long as the person acted in good faith and without gross or wanton negligence.” Section (b) goes further and protects any “records and proceedings” of any such organization from disclosure and grants any witness at a peer review meeting the privilege to refuse to testify about the proceedings in peer review.
The Superior Court of the State of Delaware stated in its Memorandum Opinion dated February 22, 2021: “Delaware Courts have routinely found that a Credentials Committee is a “peer review committee” and may invoke the protections of the statutory privilege. But in the zone of sensitive information the statute was intended to protect, credentialling [sic] a doctor to practice at a hospital is more in the nature of a personnel decision than an examination of what went wrong in a bad outcome case that has become the subject of litigation. What is not present in the cases is a sensitivity to the type of committee being queried or the type of information being sought. An employment dispute over credentials is a different animal from a medical negligence dispute over patient care. They may both invoke peer review privilege, but the core of what the statute seeks to protect is implicated in different ways in each case.”
“Credentialing and the Credentials Committee is less likely to implicate the core values expressed in the statute. Certainly, to the extent these confidences are expressed in the committee’s work, the statute requires that they remain protected … To the extent CCHS conducted a peer review consideration of the outcome of this surgery, the Court will not permit discovery of its content as such a peer committee review is the essence of the peer review privilege. To the extent Plaintiff seeks information concerning the credentialing of Dr. Bose by CCHS, the Court is not convinced by the bare pleadings that Plaintiff has made out a case of bad faith or gross or wanton negligence; further discovery may flesh out such an argument. But the allegations are not fluff. Some discovery will be permitted of the credentials process.” The court allowed discovery of (1) The dates and times of any Credentials Committee meetings at which the credentials of Dr. Bose were under consideration, (2) Identification and production of any documents provided to but not produced exclusively for use by the Credentials Committee that were submitted to the Committee for consideration, and (3) Any documents produced by the Credentials Committee that were shared with a different person, group or entity concerning the credentialing of Dr. Bose.
Source Palmer v. Christiana Care Health Services, Inc., C.A. No. N19C-01 -294 CEB.
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