Beall D. Protecting Resident Performance Evaluations Under Peer Review Immunity Law. JAMA. 1998;280(2):192C. doi:10.1001/jama.280.2.192
Prepared by Ashish Bajaj, Department of Resident Physician Services,
American Medical Association.
All 50 states and the District of Columbia have enacted peer review
statutes that provide varying degrees of immunity to those participating in
medical peer review activities. These statutes state that the proceedings,
findings, and records of peer review committees are protected from discovery
and are normally inadmissible as evidence in judicial or administrative proceedings.
The fundamental reason for preserving the confidentiality of these proceedings
is to ensure a high quality of peer review activity leading to high-quality
patient care. Unfortunately, residents' performance evaluations and related
documents are not always similarly protected. These documents can only be
adequately protected if they are specifically mentioned in a state's statute
governing peer review protections.
This lack of protection was proved in a recent medical liability case
in Illinois (Thomas v Northwestern Memorial Hospital;
No 94, L 7842). In this case a patient claimed that a resident physician and
attending physicians had been negligent in providing medical care. The plaintiff
alleged that the physicians had not responded appropriately to signs of fetal
distress during a prolonged period of induced labor. The plaintiff's attorney
made a motion to compel the defendants to submit documents that described
the resident's prior obstetrical/general medical experience and lists of cases,
as well as the resident's performance evaluations and other personnel files
The defendants had refused to submit these documents, arguing that resident
evaluations, examinations, and personnel files are protected by Illinois Medical
Studies Act 735 ILCS 5/8-2101, which was designed to offer peer review immunity.
The Circuit Court found no support in case law to uphold the defendants' contention
that the files were protected by the Medical Studies Act.
The Illinois Supreme Court recently emphasized in Roach v Springfield Clinic (157 Ill2d 29, 623 NE2d 246 )that
information gathered outside a peer review process is not covered by peer
review immunity privilege and that the privilege can only be attached to information
produced by an identifiable hospital peer review committee. If information
that is gathered outside the peer review committee is subsequently sent to
the committee, it is not considered privileged. Therefore, if resident performance
evaluation documents are not generated as part of a formal peer review process,
they are not protected under peer review immunity.
The US Congress has provided protection to participants of quality control
programs and to individuals who generate medical quality assurance records.
Peer review immunity protection can, and should, be extended to individuals
who serve on peer review committees. This would protect the privacy of committee
Residents need protection under peer review immunity law; they are considered
peers by the hospital and their evaluators. If this is not defined adequately
in a hospital's medical staff bylaws, evaluation documents may be found to
be nothing more than an extension of the residents' medical school education
transcripts. We need a more comprehensive statute producing confidentiality
of medical review programs (including resident evaluations). Such a statute
would offer residents protections that are similar to those of practicing
physicians and would hopefully foster a continuous performance review process
that would monitor and improve the quality of care provided by residents.