Peer Review Privilege
The peer review privilege applies to proceedings and records within the scope of a peer review committee of a health care entity.” R.C. 2305.252(A). A “peer review committee” is defined as:
[A] utilization review committee, quality assessment committee, performance improvement committee, tissue committee, credentialing committee, or other committee that does either of the following:
(a) Conducts professional credentialing or quality review activities involving the competence of, professional conduct of, or quality of care provided by health care providers, including both individuals who provide health care and entities that provide health care;
(b) Conducts any other attendant hearing process initiated as a result of a peer review committee’s recommendations or actions. R.C. 2305.25(E)(1).
A peer review committee can take a number of forms beyond the straightforward “peer review committee of a hospital,” R.C. 2305.25(E)(2)(a). For example, a peer-review committee can also be “[a] board or committee of a hospital . . . when reviewing professional qualifications or activities of health care providers, including both individuals who provide health care and entities that provide health care.” R.C. 2305.25(E)(2)(c).
The type of information protected by the peer review privilege is outlined in R.C. 2305.252. The peer review privilege statute prohibits, among other things, the disclosure of information “produced or presented during the proceedings of the peer review committee.” R.C. 2305.252(A). The statute also prohibits the disclosure of any information or testimony provided to a peer-review committee by any “individual who testifies before a peer review committee, serves as a representative of a peer review committee, serves as a member of a peer review committee, works for or on behalf of a peer review committee, or provides information to a peer review committee.”
The peer review privilege is expansive in some respects: it applies to “information, documents, or records” that are shared among multiple peerreview committees, so long as they continue to be “used only for peer review purposes.” Further, the peer review privilege continues to apply to the body of “information, documents, or records” within the scope of peer review even when a portion of those materials is released, and “[o]nly the information, documents, or
records actually released cease to be privileged . . . .”
The peer review privilege does not necessarily expand to everything a peer-review committee touches. The fact that an individual has participated in or provided information to a peer-review committee does not prevent that individual from “testifying as to matters within the individual’s knowledge.” “Information, documents, or records otherwise available from original sources” do not become privileged “merely because they were produced or presented during proceedings of a peer review committee.” However, such “information, documents, or records are available only from the original sources and cannot be obtained from the peer review committee’s proceedings or records.”
The Supreme Court of Ohio stated in its Deecember 10,, 2024 Opinion in which a medical malpractice plaintiff was treated for head injuries suffered during an automobile crash in the defendant hospital and subsequently filed medical malpractice claims against the hospital and a resident at the hospital: “This case centers on a discovery dispute about a hospital’s file that contains documents about a resident physician. We are asked to decide whether a “residency file” is protected by the peer-review privilege as a matter of law under R.C. 2305.252. One side claims that the file is protected based on an affidavit stating that the file is used and maintained exclusively by multiple peer-review committees. The other side claims that the file is not protected, because the affidavit contained ambiguities and did not adequately establish that the file was entirely within the scope of peer review.”
“The peer review privilege set forth in R.C. 2305.252 applies to residency files that are kept and maintained by a hospital for the purpose of reviewing and evaluating the competence, professional conduct, and quality of care of resident physicians.”
“The problem identified by the lower courts was not that Dr. Laipply’s affidavit described a process that did not constitute peer review as a matter of law. Rather, those courts held that the peer-review privilege might apply to some or all of the residency file, but various ambiguities in Dr. Laipply’s affidavit left the courts uncertain about whether the file was protected by the peer-review privilege as a matter of law.”
“We disagree with the Stulls that the trial court had no choice but to determine whether the peer-review privilege applied solely by reviewing Dr. Laipply’s affidavit, and that disclosure was required because of the deficiencies in
the affidavit. The mere fact that affidavit testimony falls short of conclusively establishing that a file is within the scope of the peer-review privilege does not require the conclusion that the file is unprivileged, nor does it justify a blanket order to disclose the entire contents of the file. The trial court had the power to take a more active role and control the discovery process related to the peer-review privilege, and that power was not limited by the substantive law governing the peer review privilege or by the standard set forth in Bansal, 2009-Ohio-6845 (10th Dist.).”
“We hold that the presence of factual ambiguities in affidavit testimony does not alone determine whether the privilege applies as a matter of law. The Rules of Civil Procedure should be applied to resolve the factual disputes at issue in this controversy. We reverse the judgment of the Ninth District Court of Appeals and remand the cause to the trial court to conduct an in camera review of the residency file and any other appropriate factual inquiry necessary to resolve the legal question of whether the file is privileged.”
Source Stull v. Summa Health Sys, Slip Opinion No. 2024-Ohio-5718.
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