Physician-Patient Relationship

Why organ transplant peer-review documents must remain privileged

Tanya Albert Henry , Contributing News Writer

It’s vital to patient safety that documents created during a human organ transplant network’s peer-review process remain privileged and not be turned over as part of discovery in a medical liability lawsuit, physicians have told a South Carolina court. 

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In an amicus brief, the Litigation Center of the American Medical Association and State Medical Societies and the South Carolina Medical Association (SCMA) have urged the South Carolina Court of Appeals to overturn a trial-court ruling. Materials that the state’s organ procurement organization (OPO) created during a federally mandated peer-review process must be turned over to the estate suing the organization in a wrongful death lawsuit, the trial court ruled. 

A Charleston County Common Pleas judge denied motions from the United Network for Organ Sharing (UNOS) and We Are Sharing Hope—South Carolina’s OPO—that sought to protect peer-review documents created after Allen B. Holliman died following a double lung transplant. 

The AMA Litigation Center and SCMA’s brief supports the transplant organizations that are now asking the South Carolina Court of Appeals to rule that the documents are privileged. 

“The decision violates the plain language of [the law]. … Additionally, the trial court’s decision cannot be reconciled with the public’s need for frank and honest communication in peer-review proceedings to improve the quality of care. As other states have recognized, peer-review records and materials must be protected to promote the public’s interest in improving health care quality,” the brief tells the appellate court in the case, Holliman v. We Are Sharing Hope. 

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria

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In 2018, Holliman received lungs from an organ donor who was injured in a motorcycle accident and treated in the hospital. Holliman’s estate alleges the man received lungs with an incompatible blood type to his own, causing his death. The estate filed a wrongful death lawsuit against We Are Sharing Hope, UNOS, a hospital and two medical personnel.  

The estate is asking for documents We Are Sharing Hope and UNOS developed or acquired through the peer review process. They argue South Carolina’s peer-review law doesn’t cover transplant organizations. 

Physicians disagree. The South Carolina law includes phrases such as “any other organization,” “external reviews and “including, but not limited to,” the AMA Litigation Center and SCMA brief notes. It tells the appellate court that the state’s rules of evidence require “reason and experience” to decide whether peer review privilege should be applied and that physicians have “considerable experience, understanding and a unique perspective on the issue of peer review.” 

“They understand the need for open and honest dialogue in the peer review setting as well as the overarching need for confidentiality regarding these discussions. Indeed, the importance of confidentiality cannot be overstated,” the brief says. “While some physicians may feel compelled to report critically on peers even in the absence of protection, a great many are likely to be deterred unless they are assured that their report will not be made public, for fear of censure and retaliation, or because they are conflict-adverse and do not wish to face, or be held accountable by, the peer who is the subject of their report.” 

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Further, confidentiality is critical when it comes to investigations that happen during root cause analysis meetings and morbidity and mortality conferences that are important in preventing future harm. 

“Upholding the trial court’s refusal to apply peer review protections to quintessentially peer review functions would acutely curtail the effectiveness of such efforts. Patient safety would be compromised, which clearly is not what the General Assembly intended,” the brief says.  

Each of the 50 states and the District of Columbia have recognized peer review’s importance, including the need for immunity and confidentiality for individuals and the documents involved in peer review.