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10 Am. J.L. & Med. 151 (1984-1985)
The Peer Review Privilege: A Law in Search of a Valid Policy

handle is hein.journals/amlmed10 and id is 161 raw text is: The Peer Review Privilege: A Law in Search of a Valid Policy B. Abbott Goldberg* ABSTRACT The peer review privilege prevents patient-plaintiffs from obtaining the hospital records prepared in connection with quality review proceedings. The privilege, created by statute in most states, is rationalized by the need for confidentiality in promoting complete and candid peer review. In this Article, the Author argues that the privilege cannot effectively pro- mote confidentiality since a common exception allows physicians to obtain the records when seeking judicial review of proceedings leading to their exclusion or dismissal from hospital medical staffs. More significantly, the Author notes that while the privilege began as a device to protect physicians from testifying against their will in malpractice suits-a con- donation of the conspiracy of silence-it has evolved into a vehicle which enables hospitals to conceal the evidence of their own neglect. I. INTRODUCTION The greatest burden of secrecy imposed by confidentiality, how- ever, is that of the secrets professionals keep to protect themselves rather than patients and clients.' Peer review, which is part of a hospital's overall quality assurance program, is a prerequisite for accreditation by the Joint Commission on Accreditation of Hospitals,2 and is required by law in most states.3 The responsibility to provide peer review has been defined in broad terms: It is the governing body's responsibility to establish, maintain, and support through the hospi- tal's administration and medical staff, an ongoing quality assurance pro- gram that includes effective mechanisms for reviewing and evaluating patient care, as well as an appropriate response to findings.''4 * Retired Judge of the Superior Court, Sacramento County, California; Scholar in Resi- dence, McGeorge School of Law, University of the Pacific, Sacramento, California. I S. BOK, SECRETS 131 (1982) ' JOINT COMMISSION ON ACCREDITATION OF HOSPITALS, ACCREDITATION MANUAL FOR HOSPITALS 151 (1983) [hereinafter cited as JCAH MANUAL]. 'See, e.g., CAL. Bus. & PROF. CODE § 2282(c) (West Supp. 1984). 4See JCAH MANUAL, supra note 2, at 151.