NLRB Decision Challenges Hospital's Peer Review Privilege

October 21, 2015

Is an employed nurse entitled to have union representation during a hospital’s peer review committee process if that process “could” result in discipline or affect that nurse’s license? In representing such a nurse, can a union obtain information and documents about the hospital’s peer review committee investigations, both past and present?  According to a recent National Labor Relations Board (“NLRB”) decision, the answer to both questions is yes.

In 2012, a Kansas hospital’s peer review committee notified two of its employed nurses about concerns of their unprofessional conduct that, if true, could be reportable to the Kansas board of nursing.  The committee invited the nurses to speak at the peer review meetings.  Both nurses requested union representation, and the hospital denied both requests on the grounds that the peer review process was strictly confidential under the Kansas peer review statute.

Additionally, prior to one of those peer review meetings, the nurses’ union demanded that the hospital provide it with documentation concerning the peer review committee process, its members, the conduct currently at issue, and all information concerning past peer review committee investigations involving possible nursing discipline.  The hospital denied the union’s request, again relying upon – among other things – the statutory peer review privilege. 

The NLRB found no merit to either of the hospital’s objections.  First, on the representation issue, the NLRB held that the hospital violated Section 8(a)(1) of the National Labor Relations Act (“Act”) because the nurses reasonably expected that discipline “could” result from their appearance before the hospital’s peer review committee, even if the only possible discipline was from the state nursing board.  Moreover, the NLRB decided that the hospital could not prohibit these nurses (or their union representatives) from discussing with other employees any discipline or reportable incidents under peer review investigation.  

Second, on the documentation issue, the NLRB held that the hospital violated Section 8(a)(5) of the Act because the hospital failed to prove a legitimate confidentiality interest in protecting the peer review documentation.  The NLRB believed that the first group of requested documents, which related to the structure and function of the committee as opposed to its internal deliberations, fell outside its strict construction of the Kansas peer review privilege.  As for the second group of requested documents, which related to the peer review committee’s past deliberations and findings, the NLRB decided that the hospital failed to prove that its peer review privilege outweighed the union’s “considerable” need for information to police the collective-bargaining agreement.  In the NLRB’s words: “[we] view the privilege in the state statute not as the dispositive factor, but rather as a consideration to be balanced against a union’s right, under the [Act], to relevant information.”

While the factual bases for the NLRB’s decision allows room for it to be distinguished, hospitals should take note of the NLRB’s underlying message: an employee’s Section 8(a) interests can trump a hospital’s statutory peer review privilege.  And if that occurs, hospitals should be concerned that disclosure of peer review documents to a union may waive that same privilege in ensuing medical malpractice litigation.

 

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