Recent Significant Changes to Wisconsin’s Peer Review Privilege

February 23, 2011

Governor Walker’s recently passed special session bill (SSB 1) instituted sweeping changes in many highly publicized areas. Several of these areas focus on providing protections to Wisconsin health care providers. One of the least understood, yet most significant, involved reform of the peer review privilege.

The then-existing peer review privilege provided, in general, that a person who participated in a review or evaluation of services provided by a health care provider or facility, was not allowed to disclose information acquired in connection with the review. In theory, the law provided that records that a reviewer or evaluator used or created in conducting the investigation, as well as the conclusions, could not be released in civil litigation. Case law, however, had carved out exceptions to these rules and made peer review more cumbersome and uncertain. In an effort to tighten up those exceptions, the bill made numerous changes to the governing statute.

The most significant change created by the new law is that incident reports and other third-party investigations which lead to a peer review process have explicit protection under the law. As a corollary, a person who participated in completing such reports need not testify to their existence. Further, if such incident report is provided to another, either intentionally or unintentionally in the course of litigation, the privilege attached to it is not waived. These changes alone will make full and honest participation in the peer review process more of a practical reality.

The bill clarified that no part of any record of the investigation can be used in any civil or criminal action against a health care provider. It made clear that exchanges of information between outside agencies participating in the review are entitled to full protection as well. Similarly, the bill allows for the sharing of information gained from peer review to be shared among providers in different organizations, in appropriate situations, without waiver of the privilege. This too brings the law closer to its goal of protecting the public and improving the quality of health care.

There are other technical changes dealing with the reporting of information gleaned in a review process in statistical form in order to better facilitate large studies of particular practices. Taken together, these changes bring the peer review statutes closer to their promise of allowing the free and candid exchange of information in an effort to improve the quality of health care.

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