Introduction

When asking physicians to reflect on their years of medical training, it is rare to find one without a formative memory connected to a morbidity and mortality conference. The process of discussing complicated cases in an open forum can be traced to the early 20th century, when American surgeon Ernest Codman held conferences at Massachusetts General Hospital as a way to examine patient outcomes and evaluate surgeon competency. From there, modern morbidity and mortality (M&M) conferences have come to serve both an educational purpose and a method for quality improvement. The current model for M&M conference is a standard practice within most medical specialties and is mandated by residency programs as part of medical training. Patient cases, including near misses, significant injuries, and deaths, are selected for review by peer review committees in a confidential setting. These conferences encourage the participants to look to literature for up-to-date evidence-based medicine and discuss ways to clinically improve practices while also evaluating opportunities for improvement in the medical system. Ultimately, this century old practice was designed to provide a forum for professional discussion in a non-punitive environment with the hopes of improving the practice of medicine.

Historically, the legal system has ruled in favor of broad peer review privilege so physicians may conduct candid evaluations to improve future patient care. In 1970, via Bredice v. Doctors Hospital, Inc, the court held that documents created by the hospital’s peer-review committee were not discoverable in medical malpractice suits. Variation in laws exist across the US regarding protections and privileges provided to hospital peer review and quality assurance committees. In 1986 as an attempt to standardize these laws, Congress passed the Health Care Quality Improvement Act, which established federal guidelines for peer review. Peer review today incorporates quality assurance programs and hospital credentialing, and it is a requirement for both Medicare and Medicaid funding and Joint Commission accreditation of hospitals.

Unfortunately, these time-honored peer review practices are under scrutiny after a number of landmark court cases in recent years. The American Medical Association (AMA) Litigation Center has followed cases closely through state courts. In the 2020 case Leadbitter v. Keystone Anesthesia Consultants et al., the Supreme Court of Pennsylvania overturned a lower court ruling allowing plaintiffs in a medical malpractice lawsuit access to peer review documents. In Michigan, a trial court ruling placed peer-review protection at risk in Dwyer v. Ascension Crittenton Hospital, though a subsequent ruling by the appellate court later reversed the decision, upholding confidentiality as an important aspect of the peer review process. Physicians in New York have seen the significant impact that these cases can have after precedent set in the recent case of Siegel v. Snyder has begun to alter their long-standing M&M practices.

Siegel v. Snyder

Historically, New York State has passed laws dictating that hospital quality assurance and peer review programs remain privileged information that is protected from mandatory disclosure in the case of litigation (Education Law § 6527 and Public Health Law § 2805-m). These laws have protected the quality assurance process within medical and dental care, and allowed members of such a committee to freely comment without concern that any statements made could become discoverable after the fact or require testimony in court regarding the content of these meetings. Of particular note, this law explicitly excludes any statements made by a person who later becomes subject of litigation: “The prohibition relating to discovery of testimony shall not apply to statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting” (Education Law § 6527 (3)).

Siegel v. Snyder was filed in 2016 regarding a patient who presented to the hospital after being struck by a vehicle and ultimately died in 2015. The care provided to this patient was reviewed by the hospital’s Trauma Peer Review Committee at the time, which the hospital considered to be protected by Education Law § 6527 and Public Health Law § 2805-m. During the lawsuit, the plaintiff’s legal team requested minutes of the three peer review committee meetings that had been held after the patient’s death and were provided with a partially redacted version of the minutes based on what they felt was appropriately discoverable. The minutes did not specify individual speakers or their respective comments. The Supreme Court of Nassau County reviewed the unredacted minutes and determined that a much more comprehensive version of the minutes be provided to the plaintiff’s team as part of discovery. The Court declared that statements made during the peer review committee meeting could only remain confidential and remain protected were those that could be proven to have been made by someone other than the defendant. In this case, as most statements were attributed to “the committee,” it was the defendants’ burden to prove that any documented statement could not be attributed to the defendant themselves (Siegel v. Snyder 2019). The Second Department of the Appellate Court upheld on appeal that any Committee minutes protected by Education Law § 6527 and Public Health Law § 2805-m that do not have speakers identified are subject to discovery on the assumption that one cannot rule out that those statements were made by the defendants (Siegel v. Snyder 2021).

M&M adjustments and Impact

While Siegel v. Snyder set a precedent in New York, variations in laws and their interpretation currently exist across the US. In both New Jersey and Pennsylvania, for instance, disclosures made by a peer review committee remain protected as long as any M&M documents created are used exclusively by the committee. If these documents are shared outside the M&M peer review committee, such privileges may be forfeited. While the federal Health Care Quality Improvement Act of 1986 established peer review standards, it did not embed protections for peer review documents from federal discovery. Therefore, federal legal cases, such as those involving the Emergency Medical Treatment and Active Labor Act, may require disclosure of M&M peer review documents.

Multiple hospitals and hospital systems have undertaken adjustments in their M&M process due to concerns about potential disclosures of M&M findings and discussions. Each approach introduces potential impacts for quality improvement processes and the academic mission of medical centers. One approach is for peer review committees to only discuss theoretical cases. Such an academic exercise essentially amounts to a form of standardized testing and clinical vignettes. Theoretical cases are likely to lack the nuances of real world situations, reducing learning opportunities for participants and limiting actual quality improvement. Furthermore, “theoretical” cases pulled from the hospital archives introduce the risk of being unmasked and potentially open to disclosure.

A second modification to the M&M format might involve continuing the peer review without allowing those involved in direct care for the case under discussion to be present. Excluding these clinicians from the meeting would allow the discussion and materials developed during the peer review to remain protected from disclosure. However, this introduces a major limitation to the committee reducing its ability to determine systemic root causes for patient outcomes or to implement a quality improvement plan when appropriate.

Others might take a more casual approach to M&M with information presented directly from the electronic medical record without prepared notes or slides and elimination of any documentation of the discussions and/or conclusions of the sessions. However, avoiding documentation limits the quality of post-hoc analysis for improvement purposes and prevents opportunities for continued education based on the conclusions of the case, essentially eliminating the mission of any quality improvement committee.

In the most extreme cases, hospitals may consider eliminating M&M committees altogether and stop reviewing any cases which could potentially have legal ramifications. But this approach is in direct opposition to Codman’s theory of the “end results system” and the M&M mission of improving patient safety and clinical outcomes.

Regardless of the modified approach adopted, the result is a decline in an organizational culture promoting safety, disclosure of near misses and errors, and missed opportunities for quality improvement interventions. Trainees will also not benefit from the learning opportunities and sense of responsibility that can be fostered in M&M sessions. Most importantly, quality improvement and patient outcomes will suffer. Confidential peer review is vital for health care improvement and accountability, especially in this age of increasing complexity and opportunities for practice improvement