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Peer Review: How Privileged?

By Elliott B. Oppenheim

How privileged, how impenetrable, is the peer review privilege? In Fox v. Kramer, 22 Cal. 4th 531, 994 P.2d 343 (Cal. 2000), the Supreme Court of California considered this narrow issue: Could plaintiffs Wendy Fox and her husband, Dr. Richard B. Fox, subpoena a doctor to give expert testimony or refer at trial to his draft preliminary report when his conclusions were based on hospital peer review committee records reviewed in the course of his official duties for a public agency? The court concluded that the answer is no; a plaintiff is not permitted to use a subpoena to accomplish indirectly that which is “forbidden directly.” But that did not necessarily mean that all information brought out in medical peer-review committee proceedings was barred from introduction in court.

The plaintiff in Fox was a physician's wife who underwent a colonoscopy procedure under a form of anesthesia known as “conscious sedation,” in which pain- and anxiety-relieving medication is given. The anesthesia does not render the patient completely unconscious, permitting her to express discomfort or change positions. During the procedure, Mrs. Fox experienced pain. She moaned or asked the physicians to wait, or stop a moment; they did so, administered more medication, and after she indicated that it was all right to continue, completed the procedure. The plaintiff recalled afterward that she moaned and asked the physicians to “wait a minute,” but otherwise did not remember anything about the procedure except two or three periods of consciousness, of 2 or 3 seconds each, during which she felt pain.

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