GA Code § 31-7-133 (2021)
2021 Georgia Code|Title 31 - Health|Chapter 7 - Regulation and Construction of Hospitals and Other Health Care Facilities|Article 6 - Peer Review Groups|§ 31-7-133. Confidentiality of Review Organization's Records

  Except in proceedings alleging violation of this article, the proceedings and records of a review organization shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action; and no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings or activities of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof. The confidentiality provisions of this article shall also apply to any proceedings, records, actions, activities, evidence, findings, recommendations, evaluations, opinions, data, or other information shared between review organizations which are performing a peer review function or disclosed to a governmental agency as required by law. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such organization, nor should any person who testifies before such organization or who is a member of such organization be prevented from testifying as to matters within such person's knowledge; but such witness cannot be asked about such witness's testimony before such organization or about opinions formed by such witness as a result of the organization hearings. Notwithstanding the foregoing, the Department of Community Health may inspect and copy peer review materials maintained by certain providers when it is determined by the department to be necessary in the performance of the department's licensure and certification responsibilities under Code Section 31-7-15; provided, however, such inspection and copying shall not waive or abrogate the confidentiality of such peer review materials as set forth in this Code section and in Code Section 31-7-15.   This Code section shall not apply to prevent:   The disclosure under Article 4 of Chapter 18 of Title 50 of those documents in the department's custody which are records, reports, or recommendations of a nationally recognized health care accreditation body and which are provided by an institution to the department for licensure purposes under subsection (b) of Code Section 31-7-3;   The use of peer review documents in any proceeding involving the permitting or licensing of an institution pursuant to this chapter to the extent necessary to challenge the effectiveness of the institution's peer review system; provided, however, such use shall not waive or abrogate the confidentiality of such documents as set forth in this Code section and in Code Section 31-7-15; or   A health care provider from obtaining the specific reasons and the records and proceedings related to such provider's exclusion or termination as a participating provider in a health maintenance organization, provider network, or other organization which engages in managed care if such provider has brought a civil action against such health maintenance organization, provider network, or other organization for wrongful exclusion or termination.      (Ga. L. 1975, p. 739, § 4; Code 1933, § 84-7604, enacted by Ga. L. 1980, p. 1282, § 1; Ga. L. 1984, p. 699, § 2; Ga. L. 1985, p. 149, § 31; Ga. L. 1991, p. 1016, § 2; Ga. L. 1995, p. 612, § 3; Ga. L. 2001, p. 192, § 3; Ga. L. 2009, p. 453, § 1-4/HB 228; Ga. L. 2012, p. 337, § 4/SB 361.)   Cross references.   - Privileges generally, § 24-5-501 et seq.    Privilege of state officers and employees to refuse to disclose identity of persons furnishing information pursuant to medical or public health investigation by Department of Human Resources (now the Department of Community Health for these purposes), § 50-18-72.   Law reviews.   - For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 249 (2001).   JUDICIAL DECISIONS   Legislative intent.   - Georgia General Assembly has concluded that confidentiality of proceedings involving review and investigation of an individual physician's standard of care in treatment of the physician's patients should be preserved. Scott v. McDonald, 70 F.R.D. 568 (N.D. Ga. 1976).   Purpose of Code section.    - Purpose for enactment of O.C.G.A. § 31-7-133 is to foster delivery of quality medical services by preserving the candor necessary for effective functioning of hospital medical review committees (now organizations). Eubanks v. Ferrier, 245 Ga. 763, 267 S.E.2d 230 (1980); Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).    Rationale for this section  is apparently to afford hospitals and similar institutions rendering medical care to examine, in the first instance, the propriety of procedures used within their institutions, in order to take curative action to remedy questionable procedures or to prevent stigmatization of certain physicians under investigation that would necessarily follow from disclosure of such proceedings, whether the medical review committee's (now organization's) disposition is favorable or unfavorable to the physician under investigation, and injury to hospital's ability to make in-house examination of adequacy of treatment afforded its patients is sufficiently great to warrant its confidentiality. Scott v. McDonald, 70 F.R.D. 568 (N.D. Ga. 1976).    O.C.G.A. § 31-7-15 does not expand the privilege set forth in O.C.G.A. § 31-7-133(a) to those proceedings and records of a peer review committee which involve only the credentialing process and not a peer review function. The same analysis is equally applicable in holding that § 31-7-15 does not expand the civil immunity otherwise afforded to peer review groups under O.C.G.A. § 31-7-132(a) so as to include all aspects of the credentialing process. Hosp. Auth. v. Meeks, 285 Ga. 521, 678 S.E.2d 71 (2009).   Relationship to other privileges.   - Georgia law did not allow for a self-critical analysis privilege; the fact that the peer review privilege is limited to review organizations within the healthcare field weighs heavily against extending such privilege to a corporate organization. Lara v. Tri-State Drilling, 504 F. Supp. 2d 1323 (N.D. Ga. 2007).   Not applicable in federal civil rights action.    - Plaintiffs in a 42 U.S.C. § 1983 action for a death of an inmate were granted a motion to compel disclosure under Fed. R. Civ. P. 26 and 37 of a morbidity and mortality report generated by jail medical official and related correspondence and documents because the court refused under Fed. R. Evid. 501 to recognize the medical peer review privilege of O.C.G.A. §§ 31-7-133 and31-7-143 in that the need for probative evidence in a civil rights action outweighed the need for privilege. Jenkins v. Dekalb County, 242 F.R.D. 652 (N.D. Ga. 2007).   Embargo on use of information in civil litigation.    - O.C.G.A. § 31-7-133 legislatively approves the view that constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor's suggestion will be used as a denunciation of a colleague's conduct in a malpractice suit and it embraces the goal of medical staff candor at the cost of impairing plaintiff's access to evidence. Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).    General Assembly has placed an absolute embargo upon the discovery and use of all proceedings, records, findings, and recommendations of peer review groups and medical review committees in civil litigation. The source of peer review information is irrelevant. Emory Clinic v. Houston, 258 Ga. 434, 369 S.E.2d 913 (1988).    In a case involving the Georgia medical review and peer review statutes, O.C.G.A. §§ 31-7-133(a) and31-7-143, the trial court erred in creating additional discovery exceptions not allowed by the statutes because the Georgia General Assembly placed an absolute embargo upon the discovery and use of all proceedings, records, findings, and recommendations of peer review groups and medical review committees in civil litigation. Hosp. Auth. of Valdosta v. Meeks, 294 Ga. App. 629, 669 S.E.2d 667 (2008), aff'd, 285 Ga. 521, 678 S.E.2d 71 (2009).    O.C.G.A. § 31-7-133 is in derogation of general policy in favor of discovery and admissibility of probative evidence. Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).    Term "proceedings and records" in O.C.G.A. § 31-7-133 includes records of the medical review committee (now organization) relating to care of patients other than plaintiff or the decedent whose estate or interests are represented by the plaintiff; such a broad range exclusion is necessary to promote the underlying purpose of the section and is clearly authorized by the statutory language because it is apparent that a candid evaluation of a physician's performance will likely necessitate a discussion of services rendered to patients other than the plaintiff or the decedent. Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).   Scope of immunity provided.   - This section does not immunize production of documents from original sources that might have fortuitously been considered during hearing, nor does the statute prevent some participant from medical review proceedings from giving testimony as to matters within the participant's knowledge or as to an applicable standard of care; it merely prohibits requiring a member of the committee (now organization) to testify as to what the member or another person might have said during the course of proceedings. Scott v. McDonald, 70 F.R.D. 568 (N.D. Ga. 1976).    Even though physician, denied privileges by a peer review committee, contended that false information motivated by malice was the basis for the denial, the privilege nevertheless applied. Baldwin County Hosp. Auth. v. Wright, 202 Ga. App. 9, 413 S.E.2d 484 (1991), cert. denied, 202 Ga. App. 905, 413 S.E.2d 484 (1992).    Georgia peer review and medical review statutes, which establish the privilege for the proceedings and records of peer review organizations and medical review committees, also provide for immunity to participants and witnesses in such proceedings under: (1) O.C.G.A. § 31-7-130, which sets forth the intent of the Georgia General Assembly; (2) O.C.G.A. § 31-7-132(a), which provides immunity from liability for peer review; (3) O.C.G.A. §§ 31-7-133(a) and31-7-141, which provide immunity for medical review committee members from claims for damages filed by health care providers; and (4) O.C.G.A. § 31-7-143, which provides that peer review and medical review proceedings are both absolutely privileged. Patton v. St. Francis Hosp., 260 Ga. App. 202, 581 S.E.2d 551 (2003).    Use of peer review privilege was not willful tort under § 51-12-6. - In an abusive litigation action under O.C.G.A. § 51-7-80 et seq., a plaintiff could not recover for damages to the plaintiff's peace, happiness, or feelings under O.C.G.A. § 51-12-6, as there was no allegation of a physical injury, and the plaintiff did not allege a willful tort; there was no support in the record that the assertion of the peer review privilege under O.C.G.A. § 31-7-133(a) constituted a willful tort. Freeman v. Wheeler, 277 Ga. App. 753, 627 S.E.2d 86 (2006), overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020).    Malice exception does not apply to the discovery privileges set forth in O.C.G.A. §§ 31-7-133 and31-7-143. Patton v. St. Francis Hosp., 246 Ga. App. 4, 539 S.E.2d 526 (2000).    Malice allegation is not sufficient to trigger application of confidentiality requirement so as to allow the opportunity for full discovery of peer review material in every case; however, a motion to compel discovery could not be denied in its entirety, even though some of the materials sought were privileged. Freeman v. Piedmont Hosp., 264 Ga. 343, 444 S.E.2d 796 (1994).   Hospital accreditation records not immune.    - Hospital accreditation records generated by a nonprofit organization are not protected from disclosure as the records of a confidential review organization under O.C.G.A. § 31-7-133 because the organization is not a "review organization" comprised primarily of "professional health care providers" as those terms are defined by O.C.G.A. § 31-7-131. Georgia Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990).   Information as to hospital's infection rate.    - O.C.G.A. §§ 31-7-133 and31-7-143 did not prevent discovery of recorded data pertaining to hospital's infection incidence because it was factual data from the original hospital records which the infection rate nurse had used to compile the information the nurse presented to the peer review committee. Cobb County Kennestone Hosp. Auth. v. Martin, 208 Ga. App. 326, 430 S.E.2d 604 (1993).   Doctors had access to notes.    - In a suit by doctors against a hospital where the doctors had served as anesthesiologists, any error by the trial court in limiting discovery of notes of an investigating psychologist's interviews with the anesthesiologists and nurses under O.C.G.A. § 31-7-133 was not harmful because the doctors had access to the notes and deposed the psychologist regarding the notes. Cancel v. Medical Center of Central Ga., Inc., 345 Ga. App. 215, 812 S.E.2d 592 (2018), cert. denied, No. S18C1054, 2018 Ga. LEXIS 769 (Ga. 2018).   Incident reporting forms.    - Hospital's incident reporting forms, termed "notification forms" and "occurrence reports," were exactly the type of documents protected from discovery by the peer review privilege. Ussery v. Children's Healthcare of Atlanta, Inc., 289 Ga. App. 255, 656 S.E.2d 882 (2008).   Information encompassed by Code section.    - O.C.G.A. § 31-7-133 applies to information generated in the course of medical review committee (now organization) proceedings which relates to physician's general competence, the physician's competence to treat the condition from which the decedent suffered as evidenced by the physician's treatment of other similarly afflicted patients and the physician's competence to perform medical procedures other than those specifically involved in the subject litigation. Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).   There are two kinds of privileged information covered by the peer review statute: (1) material that relates directly to the peer review investigation, which is always nondiscoverable, despite its source; and (2) information that would have existed regardless of the institution's investigation, but is sought from the peer review body itself. Doe v. Unum Life Ins. Co. of Am., 891 F. Supp. 607 (N.D. Ga. 1995).    In a case involving the Georgia medical review and peer review statutes, O.C.G.A. §§ 31-7-133(a) and31-7-143, the trial court erred in determining that nothing in a medical center's credentialing files was subject to discovery because, to the extent that the credentialing process involved a peer review committee's evaluation of a doctor's performance of medical procedures, the information was not discoverable; however, to the extent that there was information in the doctor's credentialing files that did not involve evaluations of the doctor's performance of these procedures, that information was discoverable. Hosp. Auth. of Valdosta v. Meeks, 294 Ga. App. 629, 669 S.E.2d 667 (2008), aff'd, 285 Ga. 521, 678 S.E.2d 71 (2009).    Information obtainable from "original sources," that is, hospital medical records and information within the knowledge of an infection rate nurse, under O.C.G.A. §§ 31-7-133 and31-7-143, is discoverable. Cobb County Kennestone Hosp. Auth. v. Martin, 208 Ga. App. 326, 430 S.E.2d 604 (1993).   Code section not applicable to activity prior to section's effective date.    - Legislature did not intend that O.C.G.A. § 31-7-133 should apply to medical review committee (now organization) activity engaged in before effective date of that section even though a discovery request is made after such time; therefore, the legislation relating to records of medical review committees (now organizations) contained in O.C.G.A. Art. 6, Ch. 7, T. 31 does not apply to records of medical review committee (now organization) activity engaged in before that article was enacted. Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).   Information as to whether or not organization meetings held is nondiscoverable.    - Since the discovery of whether any medical review committee (now organization) meetings relating to the care of the decedent were held and who attended the meetings necessitate an intrusion into the "proceedings" of the committee (now organization), such information is nondiscoverable under O.C.G.A. § 31-7-133. Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430 (1981).   Hospital information regarding decisions to suspend physician's privileges.   - In an action involving plaintiff physician's alleged drug usage prior to applying for disability insurance from defendant, information in the possession of hospitals regarding decisions to suspend plaintiff's privileges was shielded from discovery by peer review and medical review statutes. Doe v. Unum Life Ins. Co. of Am., 891 F. Supp. 607 (N.D. Ga. 1995).    Suits challenging the peer review process itself are not exempt from the discovery privileges set forth in O.C.G.A. §§ 31-7-133 and31-7-143. Patton v. St. Francis Hosp., 246 Ga. App. 4, 539 S.E.2d 526 (2000).    Limited peer review materials were discoverable by a doctor who was reviewed because the Georgia peer review privilege, O.C.G.A. §§ 31-7-133 and31-7-143, could not be used under Fed. R. Evid. 501 to prevent the doctor from discovering peer review materials that could be relevant to rebut a claimed immunity defense by a clinic and the clinic's doctors. Adeduntan v. Hosp. Auth. of Clarke County, F. Supp. 2d (M.D. Ga. Aug. 25, 2005).    Section does not infringe rights to due process, equal protection, and access to courts. Eubanks v. Ferrier, 245 Ga. 763, 267 S.E.2d 230 (1980).   Use of privilege was proper and did not support award of attorney's fees.    - Claim by a plaintiff, who had unsuccessfully asserted in a claim for attorney fees and costs under O.C.G.A. § 9-15-14 that the peer review privilege under O.C.G.A. § 31-7-133(a) was improperly applied, and who then asserted the same claim against the same parties in an abusive litigation action under O.C.G.A. § 51-7-80 et seq., was barred by collateral estoppel. Freeman v. Wheeler, 277 Ga. App. 753, 627 S.E.2d 86 (2006), overruled on other grounds by Coen v. Aptean, Inc., 2020 Ga. LEXIS 103 (Ga. 2020).   Credentialing information not within privilege.    - Unless the credentialing information involves the evaluation of the quality and efficiency of actual medical services, the information does not come within the peer review and medical review privileges of O.C.G.A. §§ 31-7-133(a) and31-7-143. Accordingly, information in a physician's credentialing files was discoverable to the extent that the information did not involve a peer review or medical review committee's evaluation of actual medical services provided by the physician. Hosp. Auth. v. Meeks, 285 Ga. 521, 678 S.E.2d 71 (2009).    Cited in Campbell v. Wilson, 143 Ga. App. 656, 239 S.E.2d 546 (1977); Hollowell v. Jove, 628 F.2d 513 (5th Cir. 1980).   OPINIONS OF THE ATTORNEY GENERAL   Applicability to trauma advisory committee.    - Since the Trauma Advisory Committee for Emergency Medical Services is a review organization consisting of surgeons licensed in the State of Georgia which evaluates care provided by professional health care providers as defined in O.C.G.A. § 31-7-131(2) for the purposes of improving the quality of care rendered and reducing morbidity and mortality due to trauma, it is a review organization within the meaning of § 31-7-131(3) and is covered by the immunity and confidentiality provisions of O.C.G.A. §§ 31-7-132 and31-7-133. 1988 Op. Att'y Gen. No. 88-5.   RESEARCH REFERENCES   ALR.   - Scope and extent of protection from disclosure of medical peer review proceedings relating to claim in medical malpractice action, 69 A.L.R.5th 559.