Colorado's Peer Review Privilege in Peril
Colorado's Peer Review Privilege in Peril

The confidentiality of medical staff peer review has long been a cornerstone of hospital operations, fostering an environment where physicians can candidly evaluate medical care without the looming specter of malpractice exposure.  But this established norm is facing a new threat in Colorado, where a ballot proposal aims to gut peer review confidentiality.

The Foundation of Peer Review Confidentiality

Peer review is a process in which physician conduct that endangers patients within a hospital can be immediately reviewed by peers.  Peer review’s goal is to promote continuous improvement in the quality of care by reviewing the performance of providers.  One commentator has observed that, “[i]n many respects, the hospital peer review system is the only meaningful, ongoing process by which medical care is monitored and evaluated and inferior care is dealt with through sanctions that prevent substandard practitioners from causing harm to patients.”[1]  

Colorado, like many other states, protects peer review records and proceedings from discovery in civil lawsuits and makes them inadmissible in court.[2]  The idea behind these protections is that shielding the peer review process from discovery and admissibility “ensure[s] that committee members are able to openly, honestly, and objectively study and review the conduct of their peers.”[3]  Creating a confidential forum where physicians can candidly discuss mistakes, make evaluations, and propose solutions—without fear that those statements will be used in a malpractice case—fosters a culture of learning and drives improvements in patient care. 

The Threat to Colorado’s Peer Review Confidentiality

Even though courts and legislatures throughout the country recognize the benefits of peer review confidentiality, not everyone agrees.  Plaintiffs’ attorneys have long argued that peer review confidentiality insulates subpar physicians from accountability and hinders patients’ ability to prosecute malpractice claims.

The latest attack on peer review confidentiality is a proposed ballot initiative in Colorado.  Earlier this year, Ballot Proposal #149 – Disclosure of Adverse Medical Incidents to Patients was submitted to the Legislature for review and comment.  If it became law, the proposal would provide patients—and their lawyers—access to “any medical record, medical information, or medical communication made or received in the course of business, treatment, and/or evaluation of prior or ongoing treatment of a patient by a health-care institution or health-care professional relating to any adverse medical incident that caused or could have caused injury to or death of the patient.”[4]   This right to access would extend to “incidents that are reported to or reviewed by any health-care institution or health-care professional through a peer review, risk management, quality assurance, credentialing, or similar committee, groups, or individuals[.]”  In short, patients and their attorneys would have a right to access confidential peer review records.

The Dangers of Ballot Proposal #149

While it is important to balance the need for peer review confidentiality with the rights of patients to receive information about their care, Ballot Proposal #149 jeopardizes the very essence of candid, constructive peer review.  Providing patients and plaintiffs’ attorneys access to confidential peer review records would chill physician participation in peer review.  Medical staff members would be reluctant to express their genuine opinions and assessments (including self-assessments), fearing their words could be used against them in litigation.  This self-censorship would lead to missed opportunities, where both individual and systemic solutions would never be identified or developed.  In this way, getting rid of peer review confidentiality would ultimately compromise patient safety.

Ballot Proposal #149 is at the beginning of the initiative process, and it remains to be seen whether it will eventually appear on the ballot or become law.  But more than half of Colorado’s statutory initiatives that make it on the ballot have been adopted in elections.[5]  Patient safety advocates and physician leaders should keep an eye on the proposal and work to preserve peer review confidentiality as a means of promoting excellence in patient care.

[1] Mulholland & Zarone, Waiver of the Peer Review Privilege: A Survey of the Law, 49 S.D. L. Rev. 424 (2004).

[2] § 12-30-204(11), C.R.S.

[3] Colorado Med. Bd. v. Office of Admin. Courts, 2014 CO 51, ¶ 13.

[4] The full text of the measure can be accessed here: https://leg.colorado.gov/sites/default/files/initiatives/2023-2024%2520%2523149.pdf.

[5] https://leg.colorado.gov/history-election-results-ballot-issues.

  • Michael  Gawley
    Partner

    Mike Gawley represents healthcare clients with a focus on litigation and dispute resolution. He has represented medical staffs, medical groups, independent practice associations, ambulatory surgery centers, and other ...

Our Health Law Ticker is a one-stop resource for everything new and noteworthy in healthcare law. We cover recent developments in healthcare legislation, healthcare reform, Medicare/Medicaid, managed care, litigation, regulatory compliance, HIPAA, privacy, peer review, medical staffs and general business operations for healthcare companies and licensed healthcare professionals.

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