Mass. R. Evid. 513

As amended through October 3, 2024

Section 513 - Medical Peer Review Privilege

(a) Definitions.

(1) As used in this section, "medical peer review committee" is a committee of a State or local professional society of health care providers, including doctors of chiropractic, or of a medical staff of a public hospital or licensed hospital or nursing home or health maintenance organization organized under G. L. c. 176G, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home or health maintenance organization or a committee of physicians established pursuant to Section 12 of G. L. c. 111C for the purposes set forth in G. L. c. 111, § 203(f), which committee has as its function the evaluation or improvement of the quality of health care rendered by providers of health care services, the determination whether health care services were performed in compliance with the applicable standards of care, the determination whether the cost of health care services were performed in compliance with the applicable standards of care, determination whether the cost of the health care services rendered was considered reasonable by the providers of health services in the area, the determination of whether a health care provider's actions call into question such health care provider's fitness to provide health care services, or the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability, or otherwise; provided, however, that for purposes of Sections 203 and 204 of G. L. c. 111, a nonprofit corporation, the sole voting member of which is a professional society having as members persons who are licensed to practice medicine, shall be considered a medical peer review committee; provided, further, that its primary purpose is the evaluation and assistance of health care providers impaired or allegedly impaired by reason of alcohol, drugs, physical disability, mental instability, or otherwise.

(2) "Medical peer review committee" also includes a committee of a pharmacy society or association that is authorized to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care, or a pharmacy peer review committee established by a person or entity that owns a licensed pharmacy or employs pharmacists that is authorized to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care.

(b)Privilege.

(1)Proceedings, Reports, and Records of Medical Peer Review Committee. The proceedings, reports, and records of a medical peer review committee shall be confidential and shall be exempt from the disclosure of public records under Section 10 of G. L. c. 66, shall not be subject to subpoena or discovery prior to the initiation of a formal administrative proceeding pursuant to G. L. c. 30A, and shall not be subject to subpoena or discovery, or introduced into evidence, in any judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C, and no person who was in attendance at a meeting of a medical peer review committee shall be permitted or required to testify in any such judicial or administrative proceeding, except proceedings held by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C, as to the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, deliberations, or other actions of such committee or any members thereof.

(2)Work Product of Medical Peer Review Committee. Information and records which are necessary to comply with risk management and quality assurance programs established by the board of registration in medicine and which are necessary to the work product of medical peer review committees designated by the patient care assessment coordinator are subject to the protections afforded to materials subject to Subsection (b)(1), except that such information and records may be inspected, maintained, and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit. Such information and records inspected, maintained, or utilized by the board of registration in medicine shall remain confidential, and not subject to subpoena, discovery, or introduction into evidence, consistent with Subsection (b)(1), except that such records may not remain confidential if disclosed in an adjudicatory proceeding of the board of registration in medicine.

(c)Exceptions. There is no restriction on access to or use of the following, as indicated:

(1) Documents, incident reports, or records otherwise available from original sources shall not be immune from subpoena, discovery, or use in any such judicial or administrative proceeding merely because they were presented to such committee in connection with its proceedings.

(2) The proceedings, reports, findings, and records of a medical peer review committee shall not be immune from subpoena, discovery, or use as evidence in any proceeding against a member of such committee who did not act in good faith and in a reasonable belief that based on all of the facts the member's action or inaction was warranted. However, the identity of any person furnishing information or opinions to the committee shall not be disclosed without the permission of such person.

(3) An investigation or administrative proceeding conducted by the boards of registration in medicine, social work, or psychology or by the Department of Public Health pursuant to G. L. c. 111C.

(d) Testimony Before Medical Peer Review Committee. A person who testifies before a medical peer review committee or who is a member of such committee shall not be prevented from testifying as to matters known to such person independent of the committee's proceedings, provided that, except in a proceeding against a witness in Subsection (c)(2), neither the witness nor members of the committee may be questioned regarding the witness's testimony before such committee, and further provided that committee members may not be questioned in any proceeding about the identity of any person furnishing information or opinions to the committee, opinions formed by them as a result of such committee proceedings, or about the deliberations of such committee.

(e)Non-Peer Review Records and Testimony. Records of treatment maintained pursuant to G. L. c. 111, § 70, or incident reports or records or information which are not necessary to comply with risk management and quality assurance programs established by the board of registration in medicine shall not be deemed to be proceedings, reports, or records of a medical peer review committee; nor shall any person be prevented from testifying as to matters known by such person independent of risk management and quality assurance programs established by the board of registration in medicine.

Mass. Guid. Evid. 513

Introduction. The medical peer review privilege, unlike so many other privileges, is not based on the importance of maintaining the confidentiality between a professional and a client, but rather was established to promote rigorous and candid evaluation of professional performance by a provider's peers. See Beth Israel Hosp. Ass'n v. Board of Registration in Med., 401 Mass. 172, 182-183 (1987). This is accomplished by requiring hospitals and medical staffs to establish procedures for medical peer review proceedings, see G. L. c. 111, § 203(a), and by legal safeguards against the disclosure of the identity of physicians who participate in peer review and immunity to prevent such physicians from civil liability. See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 396, cert. denied, 546 U.S. 927 (2005).

Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 111, § 1.

Subsection (a)(2). This subsection is taken nearly verbatim from G. L. c. 111, § 1. A licensed pharmacy is permitted to establish a pharmacy peer review committee:

"A licensed pharmacy may establish a pharmacy peer review committee to evaluate the quality of pharmacy services or the competence of pharmacists and suggest improvements in pharmacy systems to enhance patient care. The committee may review documentation of quality-related activities in a pharmacy, assess system failures and personnel deficiencies, determine facts, and make recommendations or issue decisions in a written report that can be used for contiguous quality improvement purposes. A pharmacy peer review committee shall include the members, employees, and agents of the committee, including assistants, investigators, attorneys, and any other agents that serve the committee in any capacity."

G. L. c. 111, § 203(g).

Subsection (b). Both Subsection (b)(1), which is taken nearly verbatim from G. L. c. 111, § 204(a), and Subsection (b)(2), which is taken nearly verbatim from G. L. c. 111, § 205(b), "shield information from the general public and other third parties to the same extent, [but] only information protected by § 204(a) [Subsection (b)(1)] is shielded from the board [of registration in medicine] prior to the commencement of a G. L. c. 30A proceeding." Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 508 (2009). "Determining whether the medical peer review privilege applies turns on the way in which a document was created and the purpose for which it was used, not on its content. Examining that content in camera will therefore do little to aid a judge ...." Carr v. Howard,

426 Mass. 514, 531 (1998). However, the peer review privilege does not prevent discovery into the process by which a given record or report was created in order to determine whether the information sought falls within the privilege. Id.

Subsection (b)(1). This subsection applies to "proceedings, reports and records of a medical peer review committee." G. L. c. 111, § 204(a). Material qualifies for protection under this subsection if it was created "by, for, or otherwise as a result of a 'medical peer review committee.'" Board of Registration in Med. v. Hallmark Health Corp., 454 Mass. 498, 509 (2009), quoting Miller v. Milton Hosp. & Med. Ctr., Inc., 54 Mass. App. Ct. 495, 499 (2002). See Carr v. Howard, 426 Mass. 514, 522 n.7 (1998) (asserting privilege of G. L. c. 111, § 204[a], [Subsection (b)(1)] requires evidence that materials sought "were not merely 'presented to [a] committee in connection with its proceedings,' . . . but were, instead, themselves, 'proceedings, reports and records' of a peer review committee under § 204(a)").

Subsection (b)(2). This subsection applies to materials that, while not necessarily "proceedings, reports and records" of a peer review committee, are nonetheless "necessary to comply with risk management and quality assurance programs established by the board and which are necessary to the work product of medical peer review committees." G. L. c. 111, § 205(b). Such materials include "incident reports required to be furnished to the [board] or any information collected or compiled by a physician credentialing verification service operated by a society or organization of medical professionals for the purpose of providing credentialing information to health care entities." Id. The protections afforded to materials covered by Subsection (b)(2) differ from those afforded by Subsection (b)(1) in that documents protected by Subsection (b)(2) "may be inspected, maintained and utilized by the board of registration in medicine, including but not limited to its data repository and disciplinary unit," and this subsection does not require that such access be conditioned on the commencement of a formal adjudicatory proceeding. G. L. c. 111, § 205(b).

Subsection (c). This subsection is taken nearly verbatim from G. L. c. 111, § 204(b), and Pardo v. General Hosp. Corp., 446 Mass. 1, 11-12 (2006), where the Supreme Judicial Court observed that

"the privilege can only be invaded on some threshold showing that a member of a medical peer review committee did not act in good faith in connection with his activities as a member of the committee, for example did not provide the medical peer review committee with a full and honest disclosure of all of the relevant circumstances, but sought to mislead the committee in some manner."

In Pardo, the court held that the privilege was not overcome by the allegation that a member of the committee initiated an action for a discriminatory reason. Id. See also Vranos v. Franklin Med. Ctr., 448 Mass. 425, 447 (2007).

Subsection (d). This subsection is taken nearly verbatim from G. L. c. 111, § 204(c).

Subsection (e). This subsection is taken nearly verbatim from G. L. c. 111, § 205.