State Variability in Peer Review Protections Heightens Liability Risks

To highlight various state-specific gaps in legal protections involving the peer review process with the goal of helping participants better identify and address potential hazards so they may continue to confidently engage in peer review activities.

State laws regarding peer review protections involving privilege and confidentiality were searched through Westlaw (a legal research database) and state government websites and categorized.

Gaps in protection were identified in 17 states and the District of Columbia. In the 18 jurisdictions in which potential legal gaps were identified, the most common exceptions involved peer review activities that were initiated without a legally required number of participants, were not formally mandated by the institution or other external body, or that were voluntarily discussed outside of the peer review context by participants in the process.

The widespread variability in state-based peer review protections showcases the complexity of deciphering peer review law and emphasizes the need to not just read the relevant state and federal laws but to obtain the professional guidance of a lawyer experienced in peer review law before engaging in peer review activities. These measures will improve providers' engagement in peer review and strengthen an important tool for quality improvement.