Commentary: Alaska Supreme Court issues milestone decision interpreting the Alaska Medical Peer Review Statute
On September 14, 2018, the Alaska Supreme Court significantly strengthened the protection for records and materials submitted to, or reviewed by, peer review organizations with its landmark decision interpreting AS 18.23.030, the Alaska Medical Peer Review Statute. In a unanimous decision reversing two lower court rulings, the Alaska Supreme Court in Mat-Su Valley Medical Center v. Bolinder (“Mat-Su v. Bolinder“) ruled that the medical peer review statute prohibits discovery of data, information, proceedings, and records of medical peer review organizations but does not protect from discovery a witness’s personal knowledge and observations or materials originating outside the medical peer review process.
The Supreme Court also held that the false information exception, AS 18.23.030(b), that allows a plaintiff who claims that information provided to a peer review organization was false and thus obtain otherwise privileged peer review materials, only applies to actions where the submission of false information is an element of the plaintiff’s claim. The Court held that this exception did not apply to either of the two cases on review.
Mat-Su v. Bolinder is the first time the Alaska Supreme Court has considered the scope of the medical peer review statute in a material way even though the statute was originally enacted in 1976.
The Lower Court Decisions:
Mat-Su v. Bolinder consolidated two separate Superior Court proceedings. The first legal action concerned a wrongful death case where the plaintiff’s estate claimed that the treating physician was negligent in the care for Mr. Bolinder while he was a patient at Mat-Su Regional Medical Center (“Mat-Su”).
The second legal action concerned a medical malpractice claim against the same physician. However, the second legal action included a claim that the hospital peer review credentialing committee was also negligent for granting medical staff privileges to the physician.
For each of these cases, the lower courts ordered Mat-Su to disclose any materials it had related to any complaints filed against the doctor and any documents concerning Mat-Su’s decision to grant medical staff privileges to the physician. The hospital and the physician appealed the lower court decisions compelling disclosure of the information claiming the information was privileged pursuant to the medical peer review statute.
The Supreme Court Decision:
The Supreme Court reversed both of the lower court rulings. The Supreme Court ruled that AS 18.23.030 protects from discovery “all data and information acquired by a review organization in the exercise of its duties and functions.” Thus, all of the materials presented to the peer review committees were privileged and not subject to discovery. The Supreme Court went a step further and held that the materials contained in the peer review committee files were privileged “even if those materials were not generated by the peer review committee but rather originated outside the peer review process.” The privilege applies to “[c]omplaint-related materials contained in the peer review committee files and any internal action taken in response” to those materials. The Supreme Court ruled that any complaints about the physician received by the peer review committees are privileged because it is “information acquired by a review organization in the exercise of its duties and functions.” The Supreme Court concluded that plaintiffs seeking information about a physician were limited to discovering this information from the original source or an individual with personal information.
The Supreme Court addressed the “false information” exception to the peer review privilege. Under the false information exception, peer review privilege does not apply to proceedings brought by a plaintiff who claims that the information provided to the review organization was false and claims that the person providing the information knew or had reason to know the information was false. In these cases, both plaintiffs claimed that the physician provided the peer review committees with false information that he knew or should have known was false. The plaintiffs argued that since the physician provided false information none of the review committee files were privileged.
The Supreme Court disagreed stating: “The false information exception applies to plaintiffs bringing claims for which the submission of false information is an element.” Since neither wrongful death claims nor medical malpractice claims have false information as an element, the false information exception does not apply to either case.
Stephen Rose is the Office Managing Partner for the Anchorage and Seattle offices of Hall, Render, Killian, Heath & Lyman. Mr. Rose authored the amicus curiae brief for the Alaska State Hospital and Nursing Home Association in this case. He can be contacted at firstname.lastname@example.org.