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The Louisiana Fifth Circuit Court of Appeal Recently Held that Some Board Certification Body Documentation is Protected by Louisiana's Peer Review Statute

In a recent decision, the Court of Appeal for the Fifth Circuit of Louisiana partially reversed a trial court decision ordering the American Board of Orthopaedic Surgery (“ABOS”), a nonparty to the underlying malpractice lawsuit, to produce documents that ABOS had identified in a privilege log related to the defendant physician’s malpractice lawsuit.

ABOS is a private, voluntary, nonprofit organization established to maintain standards for competence and education for board-certified orthopaedic surgeons. As part of the board certification process, ABOS reviews the credentials and practices of voluntary candidates for board certification and issues certificates to physicians who meet ABOS’s criteria. ABOS utilizes a peer-review process to assess a candidate’s competence. The process requires a physician seeking certification or recertification to produce a list of names and email addresses of practice partners, hospital chiefs of various departments, and other orthopaedic surgeons familiar with the applicant’s practice. Thereafter, ABOS emails a peer-review survey to the references seeking feedback on the applicant’s patient-care skills, surgical skills, behavior, and communication. The process also includes secondary screenings and confidential interviews. The ABOS Credentials Committee receives the information. It is noteworthy, that the ABOS agreement states that the applicant physician will never request to see the surveys.

In the instant matter, the plaintiff in the malpractice lawsuit, served a notice of records deposition on ABOS and requested any and all documentation held in connection with the defendant physician for a 10-year period. It specifically sought documentation related to the physician’s board certification status, certification, and/or recertification.

ABOS responded that the documents were protected by the confidentiality provision in Louisiana’s Peer Review Statute. More specifically, in pertinent part, La. R.S. 13:3715.3(A)(2) provides:

… all records, notes, data, studies, analyses, exhibits, and proceedings of [a]ny hospital committee, the peer review committees of any medical organization, … or healthcare provider as defined in R.S. 40:1299.41(A), … including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization …, shall be confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

In response, the trial court performed an in-camera inspection and found that none of the documents were protected by the peer review privilege except for the ABOS Diplomate Database Notes. ABOS sought a writ application with the Fifth Circuit. The reviewing court concluded that some of the documents were protected under the peer review statute because they were internal documents produced and maintained by ABOS in connection with its peer review process regarding the physician’s board certification and recertification process. These records included the ABOS peer review committee’s analysis and conclusions regarding the physician’s certification. The documents consisted of “… records, notes, data, studies, analyses, exhibits, and proceedings” of the peer review process and the court concluded that they were protected from disclosure and not discoverable by the plaintiff. The court granted the writ application with respect to these records.

However, the reviewing court only partially granted the writ application and found that some of the documents in question, such as the physician’s board certification applications, were simply factual information and discoverable. Interestingly, the court pointed out that the letters sent to the physician were not privileged because ABOS waived any privilege that protected the letters from discovery when ABOS mailed the letters to the physician. In further support of its decision, the court noted that neither the physician’s agreement with ABOS nor does La. R.S. 13:3715.2 entitle the physician to any information or data obtained by ABOS in the board certification process. As such, the court determined that the letters were discoverable. See Frederick v. St. Charles Surgical Hospital, LLC, 24-526 (La. App. 5 Cir. 12/23/24). On January 6, 2025, the Court of Appeal for the Fifth Circuit denied a request for rehearing in the matter.

La. R.S. 13:3715.3 does not provide a blanket privilege to all peer review committee documents. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La. 1992), the Louisiana Supreme Court instructed lower courts to perform in-camera inspections to determine whether or not the statutory privilege protects each item sought in discovery. As the peer review privilege is scrutinized more heavily, medical organizations that intend to exert the peer review privilege should have policies in place to protect it. Additionally, anyone in the organization who has access to confidential peer review information should be educated on the law and organizational policies to ensure that the privilege is not inadvertently waived.

The Louisiana Fifth Circuit Court of Appeal Recently Held that Some Board Certification Body Documentation is Protected by Louisiana's Peer Review Statute

In a recent decision, the Court of Appeal for the Fifth Circuit of Louisiana partially reversed a trial court decision ordering the American Board of Orthopaedic Surgery (“ABOS”), a nonparty to the underlying malpractice lawsuit, to produce documents that ABOS had identified in a privilege log related to the defendant physician’s malpractice lawsuit.

ABOS is a private, voluntary, nonprofit organization established to maintain standards for competence and education for board-certified orthopaedic surgeons. As part of the board certification process, ABOS reviews the credentials and practices of voluntary candidates for board certification and issues certificates to physicians who meet ABOS’s criteria. ABOS utilizes a peer-review process to assess a candidate’s competence. The process requires a physician seeking certification or recertification to produce a list of names and email addresses of practice partners, hospital chiefs of various departments, and other orthopaedic surgeons familiar with the applicant’s practice. Thereafter, ABOS emails a peer-review survey to the references seeking feedback on the applicant’s patient-care skills, surgical skills, behavior, and communication. The process also includes secondary screenings and confidential interviews. The ABOS Credentials Committee receives the information. It is noteworthy, that the ABOS agreement states that the applicant physician will never request to see the surveys.

In the instant matter, the plaintiff in the malpractice lawsuit, served a notice of records deposition on ABOS and requested any and all documentation held in connection with the defendant physician for a 10-year period. It specifically sought documentation related to the physician’s board certification status, certification, and/or recertification.

ABOS responded that the documents were protected by the confidentiality provision in Louisiana’s Peer Review Statute. More specifically, in pertinent part, La. R.S. 13:3715.3(A)(2) provides:

… all records, notes, data, studies, analyses, exhibits, and proceedings of [a]ny hospital committee, the peer review committees of any medical organization, … or healthcare provider as defined in R.S. 40:1299.41(A), … including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization …, shall be confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

In response, the trial court performed an in-camera inspection and found that none of the documents were protected by the peer review privilege except for the ABOS Diplomate Database Notes. ABOS sought a writ application with the Fifth Circuit. The reviewing court concluded that some of the documents were protected under the peer review statute because they were internal documents produced and maintained by ABOS in connection with its peer review process regarding the physician’s board certification and recertification process. These records included the ABOS peer review committee’s analysis and conclusions regarding the physician’s certification. The documents consisted of “… records, notes, data, studies, analyses, exhibits, and proceedings” of the peer review process and the court concluded that they were protected from disclosure and not discoverable by the plaintiff. The court granted the writ application with respect to these records.

However, the reviewing court only partially granted the writ application and found that some of the documents in question, such as the physician’s board certification applications, were simply factual information and discoverable. Interestingly, the court pointed out that the letters sent to the physician were not privileged because ABOS waived any privilege that protected the letters from discovery when ABOS mailed the letters to the physician. In further support of its decision, the court noted that neither the physician’s agreement with ABOS nor does La. R.S. 13:3715.2 entitle the physician to any information or data obtained by ABOS in the board certification process. As such, the court determined that the letters were discoverable. See Frederick v. St. Charles Surgical Hospital, LLC, 24-526 (La. App. 5 Cir. 12/23/24). On January 6, 2025, the Court of Appeal for the Fifth Circuit denied a request for rehearing in the matter.

La. R.S. 13:3715.3 does not provide a blanket privilege to all peer review committee documents. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La. 1992), the Louisiana Supreme Court instructed lower courts to perform in-camera inspections to determine whether or not the statutory privilege protects each item sought in discovery. As the peer review privilege is scrutinized more heavily, medical organizations that intend to exert the peer review privilege should have policies in place to protect it. Additionally, anyone in the organization who has access to confidential peer review information should be educated on the law and organizational policies to ensure that the privilege is not inadvertently waived.

The Louisiana Fifth Circuit Court of Appeal Recently Held that Some Board Certification Body Documentation is Protected by Louisiana's Peer Review Statute

In a recent decision, the Court of Appeal for the Fifth Circuit of Louisiana partially reversed a trial court decision ordering the American Board of Orthopaedic Surgery (“ABOS”), a nonparty to the underlying malpractice lawsuit, to produce documents that ABOS had identified in a privilege log related to the defendant physician’s malpractice lawsuit.

ABOS is a private, voluntary, nonprofit organization established to maintain standards for competence and education for board-certified orthopaedic surgeons. As part of the board certification process, ABOS reviews the credentials and practices of voluntary candidates for board certification and issues certificates to physicians who meet ABOS’s criteria. ABOS utilizes a peer-review process to assess a candidate’s competence. The process requires a physician seeking certification or recertification to produce a list of names and email addresses of practice partners, hospital chiefs of various departments, and other orthopaedic surgeons familiar with the applicant’s practice. Thereafter, ABOS emails a peer-review survey to the references seeking feedback on the applicant’s patient-care skills, surgical skills, behavior, and communication. The process also includes secondary screenings and confidential interviews. The ABOS Credentials Committee receives the information. It is noteworthy, that the ABOS agreement states that the applicant physician will never request to see the surveys.

In the instant matter, the plaintiff in the malpractice lawsuit, served a notice of records deposition on ABOS and requested any and all documentation held in connection with the defendant physician for a 10-year period. It specifically sought documentation related to the physician’s board certification status, certification, and/or recertification.

ABOS responded that the documents were protected by the confidentiality provision in Louisiana’s Peer Review Statute. More specifically, in pertinent part, La. R.S. 13:3715.3(A)(2) provides:

… all records, notes, data, studies, analyses, exhibits, and proceedings of [a]ny hospital committee, the peer review committees of any medical organization, … or healthcare provider as defined in R.S. 40:1299.41(A), … including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization …, shall be confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

In response, the trial court performed an in-camera inspection and found that none of the documents were protected by the peer review privilege except for the ABOS Diplomate Database Notes. ABOS sought a writ application with the Fifth Circuit. The reviewing court concluded that some of the documents were protected under the peer review statute because they were internal documents produced and maintained by ABOS in connection with its peer review process regarding the physician’s board certification and recertification process. These records included the ABOS peer review committee’s analysis and conclusions regarding the physician’s certification. The documents consisted of “… records, notes, data, studies, analyses, exhibits, and proceedings” of the peer review process and the court concluded that they were protected from disclosure and not discoverable by the plaintiff. The court granted the writ application with respect to these records.

However, the reviewing court only partially granted the writ application and found that some of the documents in question, such as the physician’s board certification applications, were simply factual information and discoverable. Interestingly, the court pointed out that the letters sent to the physician were not privileged because ABOS waived any privilege that protected the letters from discovery when ABOS mailed the letters to the physician. In further support of its decision, the court noted that neither the physician’s agreement with ABOS nor does La. R.S. 13:3715.2 entitle the physician to any information or data obtained by ABOS in the board certification process. As such, the court determined that the letters were discoverable. See Frederick v. St. Charles Surgical Hospital, LLC, 24-526 (La. App. 5 Cir. 12/23/24). On January 6, 2025, the Court of Appeal for the Fifth Circuit denied a request for rehearing in the matter.

La. R.S. 13:3715.3 does not provide a blanket privilege to all peer review committee documents. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La. 1992), the Louisiana Supreme Court instructed lower courts to perform in-camera inspections to determine whether or not the statutory privilege protects each item sought in discovery. As the peer review privilege is scrutinized more heavily, medical organizations that intend to exert the peer review privilege should have policies in place to protect it. Additionally, anyone in the organization who has access to confidential peer review information should be educated on the law and organizational policies to ensure that the privilege is not inadvertently waived.

The Louisiana Fifth Circuit Court of Appeal Recently Held that Some Board Certification Body Documentation is Protected by Louisiana's Peer Review Statute

In a recent decision, the Court of Appeal for the Fifth Circuit of Louisiana partially reversed a trial court decision ordering the American Board of Orthopaedic Surgery (“ABOS”), a nonparty to the underlying malpractice lawsuit, to produce documents that ABOS had identified in a privilege log related to the defendant physician’s malpractice lawsuit.

ABOS is a private, voluntary, nonprofit organization established to maintain standards for competence and education for board-certified orthopaedic surgeons. As part of the board certification process, ABOS reviews the credentials and practices of voluntary candidates for board certification and issues certificates to physicians who meet ABOS’s criteria. ABOS utilizes a peer-review process to assess a candidate’s competence. The process requires a physician seeking certification or recertification to produce a list of names and email addresses of practice partners, hospital chiefs of various departments, and other orthopaedic surgeons familiar with the applicant’s practice. Thereafter, ABOS emails a peer-review survey to the references seeking feedback on the applicant’s patient-care skills, surgical skills, behavior, and communication. The process also includes secondary screenings and confidential interviews. The ABOS Credentials Committee receives the information. It is noteworthy, that the ABOS agreement states that the applicant physician will never request to see the surveys.

In the instant matter, the plaintiff in the malpractice lawsuit, served a notice of records deposition on ABOS and requested any and all documentation held in connection with the defendant physician for a 10-year period. It specifically sought documentation related to the physician’s board certification status, certification, and/or recertification.

ABOS responded that the documents were protected by the confidentiality provision in Louisiana’s Peer Review Statute. More specifically, in pertinent part, La. R.S. 13:3715.3(A)(2) provides:

… all records, notes, data, studies, analyses, exhibits, and proceedings of [a]ny hospital committee, the peer review committees of any medical organization, … or healthcare provider as defined in R.S. 40:1299.41(A), … including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization …, shall be confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

In response, the trial court performed an in-camera inspection and found that none of the documents were protected by the peer review privilege except for the ABOS Diplomate Database Notes. ABOS sought a writ application with the Fifth Circuit. The reviewing court concluded that some of the documents were protected under the peer review statute because they were internal documents produced and maintained by ABOS in connection with its peer review process regarding the physician’s board certification and recertification process. These records included the ABOS peer review committee’s analysis and conclusions regarding the physician’s certification. The documents consisted of “… records, notes, data, studies, analyses, exhibits, and proceedings” of the peer review process and the court concluded that they were protected from disclosure and not discoverable by the plaintiff. The court granted the writ application with respect to these records.

However, the reviewing court only partially granted the writ application and found that some of the documents in question, such as the physician’s board certification applications, were simply factual information and discoverable. Interestingly, the court pointed out that the letters sent to the physician were not privileged because ABOS waived any privilege that protected the letters from discovery when ABOS mailed the letters to the physician. In further support of its decision, the court noted that neither the physician’s agreement with ABOS nor does La. R.S. 13:3715.2 entitle the physician to any information or data obtained by ABOS in the board certification process. As such, the court determined that the letters were discoverable. See Frederick v. St. Charles Surgical Hospital, LLC, 24-526 (La. App. 5 Cir. 12/23/24). On January 6, 2025, the Court of Appeal for the Fifth Circuit denied a request for rehearing in the matter.

La. R.S. 13:3715.3 does not provide a blanket privilege to all peer review committee documents. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La. 1992), the Louisiana Supreme Court instructed lower courts to perform in-camera inspections to determine whether or not the statutory privilege protects each item sought in discovery. As the peer review privilege is scrutinized more heavily, medical organizations that intend to exert the peer review privilege should have policies in place to protect it. Additionally, anyone in the organization who has access to confidential peer review information should be educated on the law and organizational policies to ensure that the privilege is not inadvertently waived.

The Louisiana Fifth Circuit Court of Appeal Recently Held that Some Board Certification Body Documentation is Protected by Louisiana's Peer Review Statute

In a recent decision, the Court of Appeal for the Fifth Circuit of Louisiana partially reversed a trial court decision ordering the American Board of Orthopaedic Surgery (“ABOS”), a nonparty to the underlying malpractice lawsuit, to produce documents that ABOS had identified in a privilege log related to the defendant physician’s malpractice lawsuit.

ABOS is a private, voluntary, nonprofit organization established to maintain standards for competence and education for board-certified orthopaedic surgeons. As part of the board certification process, ABOS reviews the credentials and practices of voluntary candidates for board certification and issues certificates to physicians who meet ABOS’s criteria. ABOS utilizes a peer-review process to assess a candidate’s competence. The process requires a physician seeking certification or recertification to produce a list of names and email addresses of practice partners, hospital chiefs of various departments, and other orthopaedic surgeons familiar with the applicant’s practice. Thereafter, ABOS emails a peer-review survey to the references seeking feedback on the applicant’s patient-care skills, surgical skills, behavior, and communication. The process also includes secondary screenings and confidential interviews. The ABOS Credentials Committee receives the information. It is noteworthy, that the ABOS agreement states that the applicant physician will never request to see the surveys.

In the instant matter, the plaintiff in the malpractice lawsuit, served a notice of records deposition on ABOS and requested any and all documentation held in connection with the defendant physician for a 10-year period. It specifically sought documentation related to the physician’s board certification status, certification, and/or recertification.

ABOS responded that the documents were protected by the confidentiality provision in Louisiana’s Peer Review Statute. More specifically, in pertinent part, La. R.S. 13:3715.3(A)(2) provides:

… all records, notes, data, studies, analyses, exhibits, and proceedings of [a]ny hospital committee, the peer review committees of any medical organization, … or healthcare provider as defined in R.S. 40:1299.41(A), … including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization …, shall be confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

In response, the trial court performed an in-camera inspection and found that none of the documents were protected by the peer review privilege except for the ABOS Diplomate Database Notes. ABOS sought a writ application with the Fifth Circuit. The reviewing court concluded that some of the documents were protected under the peer review statute because they were internal documents produced and maintained by ABOS in connection with its peer review process regarding the physician’s board certification and recertification process. These records included the ABOS peer review committee’s analysis and conclusions regarding the physician’s certification. The documents consisted of “… records, notes, data, studies, analyses, exhibits, and proceedings” of the peer review process and the court concluded that they were protected from disclosure and not discoverable by the plaintiff. The court granted the writ application with respect to these records.

However, the reviewing court only partially granted the writ application and found that some of the documents in question, such as the physician’s board certification applications, were simply factual information and discoverable. Interestingly, the court pointed out that the letters sent to the physician were not privileged because ABOS waived any privilege that protected the letters from discovery when ABOS mailed the letters to the physician. In further support of its decision, the court noted that neither the physician’s agreement with ABOS nor does La. R.S. 13:3715.2 entitle the physician to any information or data obtained by ABOS in the board certification process. As such, the court determined that the letters were discoverable. See Frederick v. St. Charles Surgical Hospital, LLC, 24-526 (La. App. 5 Cir. 12/23/24). On January 6, 2025, the Court of Appeal for the Fifth Circuit denied a request for rehearing in the matter.

La. R.S. 13:3715.3 does not provide a blanket privilege to all peer review committee documents. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La. 1992), the Louisiana Supreme Court instructed lower courts to perform in-camera inspections to determine whether or not the statutory privilege protects each item sought in discovery. As the peer review privilege is scrutinized more heavily, medical organizations that intend to exert the peer review privilege should have policies in place to protect it. Additionally, anyone in the organization who has access to confidential peer review information should be educated on the law and organizational policies to ensure that the privilege is not inadvertently waived.

The Louisiana Fifth Circuit Court of Appeal Recently Held that Some Board Certification Body Documentation is Protected by Louisiana's Peer Review Statute

In a recent decision, the Court of Appeal for the Fifth Circuit of Louisiana partially reversed a trial court decision ordering the American Board of Orthopaedic Surgery (“ABOS”), a nonparty to the underlying malpractice lawsuit, to produce documents that ABOS had identified in a privilege log related to the defendant physician’s malpractice lawsuit.

ABOS is a private, voluntary, nonprofit organization established to maintain standards for competence and education for board-certified orthopaedic surgeons. As part of the board certification process, ABOS reviews the credentials and practices of voluntary candidates for board certification and issues certificates to physicians who meet ABOS’s criteria. ABOS utilizes a peer-review process to assess a candidate’s competence. The process requires a physician seeking certification or recertification to produce a list of names and email addresses of practice partners, hospital chiefs of various departments, and other orthopaedic surgeons familiar with the applicant’s practice. Thereafter, ABOS emails a peer-review survey to the references seeking feedback on the applicant’s patient-care skills, surgical skills, behavior, and communication. The process also includes secondary screenings and confidential interviews. The ABOS Credentials Committee receives the information. It is noteworthy, that the ABOS agreement states that the applicant physician will never request to see the surveys.

In the instant matter, the plaintiff in the malpractice lawsuit, served a notice of records deposition on ABOS and requested any and all documentation held in connection with the defendant physician for a 10-year period. It specifically sought documentation related to the physician’s board certification status, certification, and/or recertification.

ABOS responded that the documents were protected by the confidentiality provision in Louisiana’s Peer Review Statute. More specifically, in pertinent part, La. R.S. 13:3715.3(A)(2) provides:

… all records, notes, data, studies, analyses, exhibits, and proceedings of [a]ny hospital committee, the peer review committees of any medical organization, … or healthcare provider as defined in R.S. 40:1299.41(A), … including but not limited to the credentials committee, the medical staff executive committee, the risk management committee, or the quality assurance committee, any committee determining a root cause analysis of a sentinel event, established by the peer review committees of a medical organization …, shall be confidential wherever located and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be available for discovery or court subpoena regardless of where located, except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only. However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee.

In response, the trial court performed an in-camera inspection and found that none of the documents were protected by the peer review privilege except for the ABOS Diplomate Database Notes. ABOS sought a writ application with the Fifth Circuit. The reviewing court concluded that some of the documents were protected under the peer review statute because they were internal documents produced and maintained by ABOS in connection with its peer review process regarding the physician’s board certification and recertification process. These records included the ABOS peer review committee’s analysis and conclusions regarding the physician’s certification. The documents consisted of “… records, notes, data, studies, analyses, exhibits, and proceedings” of the peer review process and the court concluded that they were protected from disclosure and not discoverable by the plaintiff. The court granted the writ application with respect to these records.

However, the reviewing court only partially granted the writ application and found that some of the documents in question, such as the physician’s board certification applications, were simply factual information and discoverable. Interestingly, the court pointed out that the letters sent to the physician were not privileged because ABOS waived any privilege that protected the letters from discovery when ABOS mailed the letters to the physician. In further support of its decision, the court noted that neither the physician’s agreement with ABOS nor does La. R.S. 13:3715.2 entitle the physician to any information or data obtained by ABOS in the board certification process. As such, the court determined that the letters were discoverable. See Frederick v. St. Charles Surgical Hospital, LLC, 24-526 (La. App. 5 Cir. 12/23/24). On January 6, 2025, the Court of Appeal for the Fifth Circuit denied a request for rehearing in the matter.

La. R.S. 13:3715.3 does not provide a blanket privilege to all peer review committee documents. In Smith v. Lincoln Gen. Hosp., 605 So.2d 1347, 1348 (La. 1992), the Louisiana Supreme Court instructed lower courts to perform in-camera inspections to determine whether or not the statutory privilege protects each item sought in discovery. As the peer review privilege is scrutinized more heavily, medical organizations that intend to exert the peer review privilege should have policies in place to protect it. Additionally, anyone in the organization who has access to confidential peer review information should be educated on the law and organizational policies to ensure that the privilege is not inadvertently waived.