It's time for the design profession to have the same protection as the medical profession with regard to peer-review privilege. Just what is a "privilege"? In order to encourage full and candid disclosure, the law protects certain communications from being revealed in court. This protection is called a privilege, and it applies to discussions and writing
between, for example, a lawyer and a client, a physician or psychologist and a patient, or an accountant and a client.
New York passed the first such law in 1828 to create a privilege for doctors. However, a question remained about whether a doctor's "peer review" of another doctor's work would have the same legal protection in court.
Peer review, as the name implies, is when a professional examines the work of another professional in the same field for critique and commentary. Many hospitals have committees that perform such reviews to improve the quality of patient care. A legal concern, however, is that disclosing the doctor's errors to a group of peers would open up such documents to lawyers suing for medical malpractice. Without protection, doctors would be unwilling to participate in a review, and health care would not improve.
A case in point was a 1984 Missouri Supreme Court ruling that held there was no privilege for statements or documents by medical personnel participating in peer reviews. In response, in 1985, the medical profession got a statute passed providing, with limited exceptions, that "the interviews, memoranda, proceedings, findings, deliberations, reports and minutes of peer-review committees" are not admissible in court. Further, in order to encourage doctors to serve on peer-review committees without fear of getting sued themselves, the law stated that peer reviewers "shall be immune from civil liability" if their acts are performed "in good faith." Today, nearly all 50 states have adopted laws granting a "peer- review privilege" to health-care providers.
Potential Use as Evidence?
Some design firms hire outside "peer reviewers" to examine their documents as part of quality control, but the practice is not wide-spread. Many companies are reluctant to teach their staff even lessons learned due to the fear that lawyers will try to use those materials as evidence of the firm's incompetence. This discourages firms from conducting peer reviews, teaching best practices and catching errors that might have otherwise been found by a second set of eyes. Few professionals want to serve as peer reviewers since the small fee is offset by the risk of being dragged into litigation. Here, peer-review legislation can make a difference to architect-engineering firms.
Pointed out in a Massachusetts case, the purpose of the legislation was "to promote candor and confidentiality in the peer-review process and to foster aggressive critiquing of medical care by the provider's peers." As one court noted, "Physicians would be far less willing candidly to report, testify about and investigate concerns of patient safety if their actions would be subject to later scrutiny and possible litigation." So too with A-Es.
The bill protected peer reviews from discovery, even by subpoena. It was a public safety measure aimed at encouraging improvements in the design professions. Although S.B. 220 passed overwhelmingly in the House (111-31) and Senate (33-1), Governor Jay Nixon vetoed it for being too broad. Drafters quickly went to work to address his concerns.
With statutory protection, the practice of peer review is wide-spread in health care. According to one court, the process "has become an integral component" of the U.S. health-care system. One state even extends this privilege to veterinarians. The redrafted 2012 Missouri peer-review bills are H.B. 1280 and S.B. 667. To track their progress, log on to www.house.mo.gov. It is time we gave design professionals this protection to foster aggressive critiquing of their work, learn from mistakes and provide the safest buildings and structures for all.
Bill Quatman is general counsel and a senior vice president at Burns & McDonnell Engineering Co. Inc. and can be reached at email@example.com.