To the Editor In a Viewpoint on video recording of medical procedures, Dr Makary1 downplayed their discoverability in malpractice lawsuits so long as hospitals declare a priori that they are intended solely for quality improvement. I am concerned that this assertion provides false comfort.
All 50 states and the District of Columbia have enacted some degree of peer review privilege,2 whereas federal law extends confidentiality to the quality improvement activities of certain agencies. These statutes vary widely, but the burden of proving entitlement to their protection rests with the party asserting it. Hospital counsel routinely advise their clients against the dubious practice of invoking “the statutory protection by declaring in advance that all incident documents prepared by the hospital staff are part of the peer review process.”3 Stamping a record as confidential does not make it so.
Kels CG. Video Recording of Medical Procedures. JAMA. 2013;310(9):979. doi:10.1001/jama.2013.194738