The Peer Review Privilege: No Exception for Objective Facts

By Alex Stein

The Michigan Supreme Court’s recent decision in Krusac v. Covenant Medical Center, Inc., — N.W.2d —- (Mich. 2015), 2015 WL 1809371, foiled an attempt at establishing an “objective fact” exception to the peer review privilege.  An elderly hospital patient allegedly rolled off the operating table, fell on the floor, and died shortly thereafter. As part of the hospital’s peer review procedure, one of the nurses compiled an incident report and submitted it to her superiors. The plaintiff in the ensuing wrongful death action subpoenaed that report. The trial judge ruled that the plaintiff was entitled to see the report’s first page that summarized the facts of the incident. The hospital appealed all the way to Michigan’s Supreme Court to vindicate its rights under the state’s peer review privilege, MCL 333.20175(8) & MCL 333.21515, that extends to “records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine.” These information items are  “confidential, … are not public records, and are not subject to court subpoena.” Read More

Doctors Conducting Peer Review Can Recover Compensatory and Punitive Damages for Confidentiality Violations

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.” Read More

On Scientific Journals as a Bulwark Against Research Misconduct

By Patrick O’Leary

I’ve been thinking a lot lately about how our society regulates the integrity of scientific research in an era of fierce competition for diminishing grants and ultracompetitive academic appointments. When I shared a draft paper on this topic a few weeks ago, several colleagues urged me to think more about the role played by academic journals, so I was interested to see this article in Nature last week about a recently uncovered criminal scam defrauding two European science journals and countless would-be authors. It caught my attention because it seems to belie the notion that the journals and the honest scientific community are sophisticated enough actors to be trusted to root out the fabrication, falsification, and plagiarism that constitute “research misconduct” under Federal law. Needless to say, it takes a different kind of expertise to discern scientific misconduct than to uncover a more mundane phishing scam like the one these cons were running, but the anecdote stands as a nice reminder of the fallibility even of great minds.

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