Different Committee, Different Scope: Delaware Court Holds Credentials Committee Documents May Be Subject to Discovery
Deborah Palmer (“Plaintiff”), as the surviving spouse of Vance Palmer (“Mr. Palmer”), brought multiple claims against defendants Christiana Care Health Services, Inc. (“Hospital”) and neurosurgeon Bikash Bose, M.D. (“Dr. Bose”)1. Plaintiff alleged Dr. Bose negligently performed an unnecessary surgery on Mr. Palmer’s brain2. Mr. Palmer suffered a stroke during the surgery and passed away approximately one year later due to stroke complications3. Plaintiff also alleged that the Hospital was aware of Dr. Bose’s reputation for performing negligent surgeries4. At the time of Mr. Palmer’s surgery, Dr. Bose had been named in 31 medical malpractice lawsuits and the Hospital had been named as a co-defendant in 15 of the 31 lawsuits. Plaintiff alleged that, despite the considerable number of malpractice lawsuits5, the Hospital failed to take action to limit Dr. Bose’s ability to practice at the Hospital6.
As part of the lawsuit, Plaintiff sought documents from the Hospital and Dr. Bose. Plaintiff specifically sought information about any Hospital peer review meetings held concerning Dr. Bose, including the meeting dates, creation of, membership of, and results of any such peer review meetings7. The Hospital did not produce documents in response to the Plaintiff’s request and cited the protections of Delaware’s peer review statute8.
After reviewing Delaware peer review precedent in a variety of contexts, the Delaware Superior Court held that the scope of peer review discovery depends on: (1) the peer committee being queried; and (2) the claim upon which discovery is sought9. Here, the court differentiated between quality assurance committees and credentialing committees10. The court stated quality assurance committee discussions represent the core of what a peer review privilege must protect11. For example, the court stated quality assurance committees discuss cases of morbidity, mortality, and other sentinel events12.
On the other hand, the court found that a credentialing committee's role is more akin to a personnel decision than examining what occurred during surgery13. Therefore, the court determined that credentialing a practitioner is less likely to implicate the core values expressed in the peer review statute and was not subject to protection under the Delaware peer review statute14.
The court held that to the extent the Hospital conducted peer review of Mr. Palmer’s surgery, such consideration was not subject to discovery because this review encompassed the essence of the peer review privilege15. However, to the extent Plaintiff sought information concerning the credentialing of Dr. Bose16, the court allowed discovery to potentially support Plaintiff’s arguments that the Hospital acted in bad faith when it continued to recredential Dr. Bose. Ultimately, discovery concerning Dr. Bose’s credentialing at the Hospital was allowed regarding: (1) the dates and times of any Credentials Committee meetings where Dr. Bose’s credentials were considered; (2) identification and production of any documents submitted to the Credentials Committee for consideration, provided the documents were not produced exclusively for use by the Credentials Committee; and (3) any documents produced by the Credentials Committee that were shared with a different person, group, or entity concerning Dr. Bose’s credentialing at the Hospital17.
The Delaware Superior Court considered credentialing activities to be more akin to a personnel decision than a protected discussion of quality concerns. The court looked to the “core values” expressed in Delaware’s peer review statute to determine what is, and what is not, protected peer review. This case demonstrates that the scope of the peer review privilege is not purely defined by the Delaware peer review privilege statute, but is also refined by case law.
1 Palmer v. Christiana Care Health Servs., Inc., C.A. No. N19C-01-294 CEB, 2021 WL 673462 *1 (Del. Super. Ct. Feb. 22, 2021).
8 Id. See 24 Del. C. § 1768
9 Id. at *5.
10 Id. at *4.
14 Id. at *5.