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49 S.D. L. Rev. 424 (2003-2004)
Waiver of the Peer Review Privilege: A Survey of the Law

handle is hein.journals/sdlr49 and id is 446 raw text is: WAIVER OF THE PEER REVIEW PRIVILEGE: A SURVEY OF THE
LAW
DANIEL M. MULHOLLAND IIIt
PHIL ZARONEtt
I. INTRODUCTION
The concept of hospital peer review and the privileges and immunities
attendant to it have recently taken on a greater importance, given the current
malpractice litigation crisis and demands for greater accountability for medical
errors. In many respects, the hospital peer review system is the only meaningful,
ongoing process by which medical care is monitored and evaluated and inferior
care is dealt with through sanctions that prevent substandard practitioners from
causing harm to patients. But if that system is to work in a climate of increasing
litigiousness, the confidential nature of the process must be preserved, and those
who make the process work must be protected from liability. For these reasons,
the issue of waiver of peer review privileges and immunities has taken on a new
urgency. As is so often the case, two recent decisions have shed new light on
this issue, which calls for a closer examination of when and how the peer review
privilege can be waived.
The Supreme Court of Appeals of West Virginia recently ruled in State ex
rel. Brooks v. Zakaib1 that a party may impliedly waive the peer review
privilege if it fails to maintain privileged information in a confidential manner.
Zakaib was a departure from a prior ruling of the court, which held that a party
must formally indicate his intent before the privilege could be waived.2 The
Missouri Court of Appeals also recently addressed waiver of the peer review
privilege. In Missouri ex rel. St. John's Regional Medical Center v. Dally,3 the
court adopted two doctrines by which the peer review privilege may be waived:
the at issue and the fairness doctrines. Essentially, these doctrines hold that
a party can waive the privilege by using peer review information in a manner that
is unfair to the opposing party.
Zakaib and Dally no doubt represent an expansion of the doctrines
governing waiver of the peer review privilege in West Virginia and Missouri.
However, before concluding that Zakaib and Dally are indicative of a general
trend regarding waivers in peer review cases, it is important to recognize that
t Senior partner, Horty, Springer & Mattern, P.C., Pittsburgh, PA.
tt Associate, Horty, Springer & Mattern, P.C., Pittsburgh, PA.
1. 588 S.E.2d 418 (W. Va. 2003).
2. Young v. Saldanha, 431 S.E.2d 669, 675 (W.Va. 1993).
3. 90 S.W.3d 209 (Mo. Ct. App. 2002).
4.  Id. at 215-17.
5.  Id.

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