The Georgia peer review statute, O.C.G.A. § 31-7-130, et seq. (the “Georgia Statute”), sets forth the standards by which health care providers may evaluate the quality and efficiency of services provided by other health care providers with immunity from liability for any individuals participating in the peer review process and confidentiality of such evaluations.
IMMUNITY
It is important to note that the federal Health Care Quality Improvement Act, 42 U.S.C. § 11111, et seq. (“HCQIA”) preempts Georgia law with regard to federal and state claims of monetary damages. However, since the HCQIA does not provide immunity against claims for equitable relief, the peer review immunity under the Georgia Statute still applies for equitable claims.
Monetary Claims
Under the HCQIA, the professional review body, any person acting as a member or staff to the body, any person under contract or other formal agreement with the body, and any person who participates with or assists the body with respect to the action shall not be liable for monetary damages (regardless of bias). This immunity, however, does not extend to claims for monetary damages under civil right claims or prevent the government from initiating an action where such action is otherwise authorized. Furthermore, anyone providing information regarding the competence or professional conduct of a physician to the professional review has immunity from federal and state monetary claims unless the person providing the information knew that the information was false.
Equitable Claims
Pursuant to the Georgia Statute, peer review committee members and any other individuals who counsel or provide information are immune from both civil and criminal liability for the performance of peer review activities provided that such person is not biased towards any person affected by such activity or knowingly provides false information. Georgia courts, however, have held that proceedings involving only credentialing and not peer review functions are not protected under the Georgia Statute.
CONFIDENTIALITY
Civil Rights Claims
The discovery privileges provided by the Georgia Statute do not apply in federal or state civil rights actions. The Eleventh Circuit ruled that the elimination of civil rights violations deserves greater weight than the protection of peer review functions. Nonetheless, the trial courts retain the authority to protect sensitive information through other established means, such as protective orders, confidentiality agreements, and by disclosure only after an in-camera review of the documents. Furthermore, litigants are not necessarily automatically entitled to institution-wide discovery in all civil rights cases; rather, the courts will institute a fact-based discovery review in the context of the claims at issue.
Discovery Privilege
Georgia law places an “absolute embargo” upon the discovery and use of all proceedings, records, findings and recommendations of peer review proceedings in civil litigation. Peer review attendees may not (and may not be required to) testify in civil actions regarding any information, facts or documentation presented or the findings, recommendations, evaluations, opinions, incident reporting forms, or other actions made during the proceeding.
The embargo also includes information shared between entities performing peer review functions or disclosed to a government agency as required by law, but information, documents, or records available from other non-protected sources may be subject to discovery. Attendees may testify regarding matters within any of their knowledge, but may not be asked about testimony given or opinions formed during peer review proceedings. Additionally, violation of hospital bylaws does not waive discovery privilege protection.
However, the Georgia Statute does not prevent the use of peer review documents involving the permitting or licensing of an institution to challenge the effectiveness of the institution’s peer review system; provided, however, that such use shall not waive or abrogate the confidentiality of such documents. Nor does it protect proceedings and records which involve only the credentialing process and not the peer review function.
This article was originally published in the July 2011 issue of Atlanta Hospital News.