Peer Review Privilege
Under State And Federal Law
This memo is intended to discuss the application of Evidence Code §1157, 42 C.F.R. §483.75(o), 42 U.S.C. §1395i-3(b)(1)(B), and 42 U.S.C. §1396r(b)(1)(B). First, it will focus on the history and application of the statutes and the regulation as they pertain to skilled nursing facilities. Second, it will discuss what is necessary to form a “peer review body” or an “organized committee.” Third, it will discuss the importance of the subtle distinction between an administrative function and a committee function. Fourth, this memo will discuss what information is and is not subject to discovery.
1. EVIDENCE CODE §1157
Evidence Code §1157 is a legislative response to the court’s decision in Kenney v. Superior Court, (1967) 255 Cal.App.2d 106, wherein the court sustained a plaintiff’s malpractice claim to discovery of all hospital staff records including those records derived from peer review reports.
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