By Alex Stein
The Supreme Court of New Mexico has recently delivered an important decision protecting peer reviewers’ statutory entitlement to confidentiality. Yedidag v. Roswell Clinic Corp., — P.3d —- (N.M. 2015), 2015 WL 691333. The Court ruled that peer reviewers can sue violators of their confidentiality right and recover compensatory and even punitive damages. This ruling applied the common law criteria for identifying statutory violations as a breach of contract. Based on those criteria, the Court categorized peer reviewers as members of the class protected by the peer review statute, who deserve remedies for violations of their confidentiality right. The Court also estimated that the criminal penalty imposed by the statute on the right’s violators was too lenient to discourage violations. The Court projected that allowing peer reviewers to sue violators will compensate for the resulting shortfall in deterrence. As a conceptual matter, the Court decided that peer reviewers’ confidentiality entitlement is a “mandatory rule of law incorporated into physician-reviewer employment contracts.”
This decision was followed by a ruling against the hospital that terminated the employment of a doctor for “verbally attacking” a colleague at a peer review meeting. The alleged “verbal attack” included tough questions that addressed the colleague’s removal of one malignant tumor from a deceased patient’s colon, instead of two. The hospital perceived these questions as “unprofessional conduct” that justified the doctor’s termination, but the Court profoundly disagreed. The Court decided that the doctor’s questions – even if uncivilized – were privileged, and that it was not within the hospital’s rights to use them (or any other confidential peer review information) as a reason for firing him. Based on that decision, the Court affirmed the jury’s verdict obligating the hospital to pay the doctor compensatory and punitive damages. The Court’s decision relied on several academic works that included Katharine Van Tassel’s important study of the peer review mechanism.