Arnett v. Dal Cielo: peer review confidentiality threatened by medical board investigational subpoenas.

Abstract

If not modified or overturned on appeal, the Dal Cielo decision will very likely have a significant negative impact on the ability of California's organized peer review bodies to conduct frank, candid, and confidential peer review. Dal Cielo appears to permit the Board to subpoena committee minutes, physician credentials files, and live testimony whenever it determines that a physician should be investigated. Further, the impetus for the Board's investigation might be little more than a complaint from a single patient or even a disgruntled former employee of the physician or hospital. Regardless of current and future decisions, however, peer review bodies in California and other states operating under similar court decisions still retain at least some limited means to protect the confidentiality of their evaluative work. If, for example, a peer review body can establish that an investigatory subpoena seeks irrelevant information, is based upon little more than unsubstantiated rumor, or that the medical board has made no efforts to obtain information from other available, non-privileged sources, it may be able to convince a court that the subpoena is not supported by good cause. Peer review organizations should thus consider challenging medical board subpoenas in court to narrow their scope or establish that there is sufficient need for them. If any peer review body is served with an investigatory subpoena by a medical board requesting production of peer review information, it should carefully assess applicable state confidentiality protections.(ABSTRACT TRUNCATED AT 250 WORDS)