Health Law Monitor

West Virginia Supreme Court Clarifies Statutory Peer Review Privilege

February 17, 2016

By: John Mark Huff

On February 9, 2016, the West Virginia Supreme Court (“Supreme Court”) decided State ex rel. Wheeling Hospital, Inc. v. Wilson, No. 15-0558 (W. Va. February 9, 2016), which took up the issue of the Peer Review Privilege codified at W. Va. Code § 30-3C-1 et seq.  In clarifying the meaning of the language contained in West Virginia’s Peer Review Statute, the Supreme Court recognized “an urgent need for more precise guidelines as to which documents are subject to disclosure.” Wheeling Hospital, No. 15-0558 at 14.

This matter arrived at the Supreme Court on a Petition for a Writ of Prohibition filed by the Defendant, because it had been ordered by the Circuit Court to produce several documents that it claimed were protected by the Peer Review Privilege. Id. at 3.  The Plaintiff, however, argued that these documents were not necessarily created specifically to be used for peer review purposes and were documents that fell under the original source exception to the Peer Review Privilege. Id. at 4, 8.  In its argument to the Supreme Court, the Defendant argued that if the documents ordered to be disclosed by the Circuit Court were, in fact, disclosed, “such disclosure [would] have a ‘chilling effect’ on the peer review process, itself.” Id. at 7 (citing Young v. Saldanha, 431 S.E.2d 669, 673 (W. Va. 1993)).

With Justice Davis writing the opinion, the Supreme Court performed a lengthy discussion of West Virginia’s Peer Review Statute and the case law interpreting the same while citing case law from other jurisdictions to aid in further interpreting the meaning of the statute. In so doing, the Supreme Court stated “that documents using data that is generated exclusively for o by a peer review organization for its sole use are protected by the peer review privilege.” Id. at 15.  Further, the Supreme Court stated that “documents that contain mental impressions, analyses, and/or work product of the review organization are exempt from disclosure.” Id. Specifically, the Supreme Court found that “credentialing files are “clearly privileged.” Id. (citing Syl. Pt. 8, State ex rel. Charles Town Gen. Hosp. v. Sanders, 556 S.E.2d 85 (W. Va. 2001)).

However, according to the Supreme Court the more difficult question arises when determining “[w]hich category contains documents that are considered by a peer review organization but that have not necessarily been created specifically for or by that entity” or whether “compilations of existing data that are used by a peer review organization” fall under Peer Review protection. Id. at 16.  The Supreme Court stated that “[t]he answer…is simple: ‘the origin of the document determines if it is privileged.’” Id. at 16-17 (quoting State ex rel. Shroades v. Henry, 421 S.E.2d 264, 269 (W. Va. 1992)). 

To determine the origin of the document, one must “look to the way in which a document was created and the purpose for which it was used, not…its content.” Id. at 17 (quoting Bd. of Registration in Med. v. Hallmark Health Corp., 910 N.E.2d 898, 907 (Mass. 2009)).  “The proper inquiry as to whether a document qualifies for protection…is whether it was created by, for, or otherwise as a result of a medical peer review committee.” Id. (quoting Hallmark, 910 N.E.2d at 907).  Thus, according to the Supreme Court, “the test to apply to determine whether the peer review privilege shields a particular document from disclosure is whether the document was created exclusively by or solely for a review organization.” Id.

With regard to original source documents, the Supreme Court found that “[d]ocuments that may be provided to a peer review committee, but were not originally prepared exclusively for the committee and are also accessible to staff of the facility in their capacities as employees or managers of the facility, separate and apart from any role on a review committee, are not in any way protected by the privilege. The privilege attaches only to the files maintained by and for the committee, not to all files in a facility.” Id. at 19 (quoting Large v. Heartland-Lansing of Bridgeport Ohio, LLC, 995 N.E.2d 872, 884-85 (Ohio Ct. App. 2013)).  Simply put, “documents that are otherwise discoverable do not become privileged merely because they have been dipped in the waters of a peer review committee file.” Id. at 20 (quoting Large, 995 N.E.2d at 886).  Importantly though, the Supreme Court held that “[w]here documents sought to be discovered are used in the peer review process but either the document, itself, or the information contained therein, is available from an original source extraneous to the peer review process, such material is discoverable from the original source, itself, but not from the review organization that has used it in its deliberations.” Id. at Syl. Pt. 2.

Applying these principles to the facts of this case, the Supreme Court held “that the party seeking the protections of the peer review privilege bears the burden of establishing its applicability by more than a mere assertion of privilege.” Id. at 22-23.  The Supreme Court further found that many of the documents that the Circuit Court ordered to be produced were, in fact, privileged by the Peer Review Privilege. Id. at 23-24.  However, the Supreme Court was unable to tell whether the remaining documents were entitled to Peer Review protection, because it lacked “the crucial information determinative of the applicability of the privilege.” Id. at 24.  As such, the Supreme Court held that a party seeking peer review protection of certain documents must produce a privilege log that “identifies each document…by name, date, and custodian” as well as providing information regarding “(1) the origin of each document, and whether it was created solely for or by a review committee, and (2) the use of each document, with disclosures as to whether or not the document was used exclusively by such committee.” Id. at 26.  The privilege log should also contain “a recitation of the law supporting the claim of privilege.” Id.

Therefore, the Supreme Court granted the Writ of Prohibition as to the documents specifically enumerated in its opinion and ordered the Defendant to produce a privilege log consistent with the Supreme Court’s opinion such that the Circuit Court could perform a further in camera review of the documents for which a claim of privilege was made.  Further, the Supreme Court’s opinion included the following four new syllabus points:

1. To determine whether a particular document is protected by the peer review privilege codified at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must ascertain both the exact origin and the specific use of the document in question. Documents that have been created exclusively by or for a review organization, or that originate therein, and that are used solely by that entity in the peer review process are privileged. However, documents that either (1) are not created exclusively by or for a review organization, (2) originate outside the peer review process, or (3) are used outside the peer review process are not privileged.

2. Where documents sought to be discovered are used in the peer review process but either the document, itself, or the information contained therein, is available from an original source extraneous to the peer review process, such material is discoverable from the original source, itself, but not from the review organization that has used it in its deliberations.

3. The party seeking the protections of the peer review privilege bears the burden of establishing its applicability by more than a mere assertion of privilege.

4. A party wishing to establish the applicability of the peer review privilege, set forth at W. Va. Code § 30-3C-3 (1980) (Repl. Vol. 2015), should submit a privilege log which identifies each document for which the privilege is claimed by name, date, and custodian. The privilege log also should contain specific information regarding (1) the origin of each document, and whether it was created solely for or by a review committee, and (2) the use of each document, with disclosures as to whether or not the document was used exclusively by such committee. Finally, the privilege log should provide a description of each document and a recitation of the law supporting the claim of privilege.

This article was authored by John M. Huff, Jackson Kelly PLLC. For more information on the author, see here.