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Institutional Ethics Committees: Issues of Confidentiality and Immunity

Published online by Cambridge University Press:  28 April 2021

Ronald E. Cranford ,
F. Allen Hester  and
Barbara Ziegler Ashley
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Extract

Institutional ethics committees (IECs) now exist at many health care facilities and are in the planning stages at others. Due in part to the recent origins of IECs and the continuing debate over their optimal composition, role, and status in health care institutions, legislatures and courts have yet to recognize or clarify their legal status. Neither reported cases nor statutes clearly explain whether the proceedings and records of IECs must be disclosed to prosecuting attorneys or to parties to civil lawsuits, whether such information can be introduced as evidence in a trial, or whether persons serving on IECs or those providing information to IECs may be held civilly or criminally liable for actions by the committees.

This article sets forth some basic principles relating to the composition and functions of IECs, then examines the questions of confidentiality of IEC proceedings and immunity for persons serving on or providing information to the committees. Several reasons against and in favor of confidentiality and immunity are stated.

Type
Article
Information
Law, Medicine and Healthcare , Volume 13 , Issue 2 , April 1985 , pp. 52 - 60
Copyright
Copyright © American Society of Law, Medicine and Ethics 1985

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References

Cranford, R.E. Doudera, A.E., The Emergence of Institutional Ethics Committees, in Institutional Ethics Committees and Health Care Decision Making (Cranford, R.E. Doudera, A. E., eds.) (Health Administration Press, Ann Arbor, Mich.) (1984) at 5–21.Google Scholar
See Infant Bioethics Task Force and Consultants, Guidelines for Infant Bioethics Committees, Pediatrics 74(2): 306–10 (April 1984).Google Scholar
Depending on the committee model chosen by the institution and perhaps the facts of the case under consideration, the IEC might offer a specific (unanimous or majority) recommendation or a range of choices, or simply assist the parties in exploring the issues in the case. This article does not recommend any single form of committee decision, or whether an IEC decision should be considered binding on the parties or merely advisory.Google Scholar
A recent article suggests that an IEC might have one of three identities. It could be associated with the medical staff, the administrative staff, or the governing board. Monagle, J. F., Blueprints for Hospital Ethics Committees, CHA Insight 8(20): 1 (June 26, 1984).Google ScholarPubMed
See Fed. R. Civ. P. 26(b)(1) (parties may obtain discovery regarding any unprivileged matter relevant to the subject matter of the law suit).Google Scholar
See, e.g., Fed. R. Evid. 403 (exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time).Google Scholar
See, e.g., Cal. Evid. Code §992.994 (1984).Google Scholar
In this and other references to court review of IEC decisions, we refer to the likelihood that patients, their families, physicians or other interested parties will ask courts to decide treatment issues when they are dissatisfied with other decision-making processes or results. The dissatisfied party may go to court asking for an injunction (e.g., to require or prohibit certain medical treatment) or for civil damages (e.g., in a medical malpractice action) or for other relief. Where an IEC has been involved and has issued a recommendation, and where that recommendation is known to the court, the court in essence will be reviewing the IEC recommendation. However, IEC recommendations will not be reviewed directly by the courts in the same way that, for example, administrative hearing decisions are subject to judicial review. E.g., Minn. Stat. Ann. §14.64 (West 1984).Google Scholar
See generally Ott v. St. Luke Hosp. of Campbell County, Inc., 522 F. Supp. 706, 711 (E.D. Ky. 1981).Google Scholar
See, e.g., Ill. Ann. Stat. ch. 110, §8–2103 (Smith-Hurd 1984).Google Scholar
There is—and should be—no guarantee that an IEC's recommendation will not be reviewed later by a court if one or more parties are dissatisfied with the recommendation or the patient's outcome. But, first consulting an IEC at least holds the possibility of an outcome which is acceptable enough to all of the parties to reduce the likelihood of later court review. See President's Commission for the Study ords which reflect the IEC's recommenda Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (U.S. Gov't Printing Ofc., Washington, D.C.) (1983) at 160–70.Google Scholar
Others have suggested that any notes made in the patient's medical records which reflect the IEC's recommendation can subject the entire IEC proceedings to discovery. This may be the result in a jurisdiction which strictly follows the traditional rules of “privileged communications,” since the privilege is lost if the information is communicated to a person who does not share the privilege. The better analysis, we believe, would allow the chart notes as a necessary communication which would not require disclosure of other IEC information. Legislation specifically making IEC proceedings and records confidential and non-discoverable would obviate such concerns about privilege rules.Google Scholar
See OH, supra note 6 (discussion of medical review committees only).Google Scholar
We acknowledge that the patient's interest in the confidentiality of his or her medical records is an important concern for IECs. However, constraints of time and space do not permit a full exploration of these issues.Google Scholar
A Minnesota statute on medical review committees has been interpreted as allowing those committees guidelines to be obtained by parties to a lawsuit, but not admitted into evidence at the trial. Minn. Stat. Ann. §§145.64–145.65 (West 1984); Kalish v. Mt. Sinai Hosp., 270 N.W.2d 783, 786 (Minn. 1978). One rationale underlying the statute and the court's decision may be that patients have a right to know the institution's guidelines relating to patient care, but that the guidelines might be given undue weight in a trial, prejudicing the rights of a party.Google Scholar
Ott v. St. Luke Hosp. of Campbell County, Inc., 522 F. Supp. 706, 711 (Ky, E.D.. 1981); Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir. 1981) (review committee material sought in antitrust action).Google Scholar
Minn. Stat. Ann. §626.557 (West 1983)Google Scholar
We reviewed statutes from California, Minnesota, New York, Illinois, and Arizona. Cal. Civ. Code §§43.7–43.8 (1984); Cal. Evid. Code §1157 (1984); Minn. Stat. §§145.61–145.67 (1984); N.Y. Educ. Law §6527 (1979); Ill. Ann. Stat. ch. 110, §§82101-2105 (Smith-Hurd 1984). We also reviewed recent cases from these and several other states. Seeing the differences among these few states, we decided not to undertake a thorough analysis of additional states statutes and cases in this article. A list of most of the state statutes relating to medical review committees appears in Note, The Legal Liability of Medical Peer Review Participants for Revocation of Hospital Staff Privileges, Drake Law Review 28(3): 28, 694. n. 11 (1978/1979). This list mentions only immunity statutes; Nebraska's statute on immunity is omitted. Neb. Rev. Stat. §71-2048. It should also be noted that Massachusetts’ statute is incorrectly cited; the correct citation is Mass. Gen. Laws Ann. ch. 231, §85N (West 1984).Google Scholar
See, e.g., Minn. Stat. Ann. §145.61 subd. 5 (West 1984).Google Scholar
See Cal. Evid. Code §1157 (1984) (protecting from discovery the proceedings and records of medical staff committees). But see Cal. Civ. Code §43.7(b) (1984) (granting immunity from liability when the committee is composed chiefly of physicians, surgeons, and other health professionals).Google Scholar
See, e.g., Minn. Stat. Ann. §145.64 (West 1984).Google Scholar
See, e.g., Ariz. Rev. Stat. Ann. §36-445.01 (1984). This statute also requires that the covered hospital committees review “the nature, quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.”Google Scholar
E.g., Minn. Stat. Ann. §145.61 subd. 5 (West 1984).Google Scholar
The Illinois statute confers confidentiality on committee proceedings but does not expressly grant immunity to committee members. Ill. Ann. Stat. ch. 110, §8-2101 (Smith-Hurd 1984). Illinois does grant immunity to those who furnish information to covered committees. Id. §8-2103.Google Scholar
The criminal prosecution of Drs. Barber and Nejdl in California, although finally dismissed, raised fears that IEC members who recommended foregoing treatment also might be prosecuted for causing the patient's death. No IEC was involved in that case. People v. Barber, A025586 (Municipal Court of Los Angeles County March 9, 1983); People v. Barber, A025586 (Los Angeles Sup. Ct. May 5, 1983); Barber v. Los Angeles County Superior Court, 195 Cal. Rptr. 484, (Cal. App. 1983).Google Scholar
See, e.g., Cal. Evid. Code §1157 (1984).Google Scholar
E.g., N.Y. Educ. Law §6527, subd. 3 (1979).Google Scholar
E.g., Ill. Ann. Stat. ch. 110, §8-2101 (Smith-Hurd 1984); Minn. Stat. Ann. §§145.64, §145.61 subd. 5 (h) (West 1984).Google Scholar
E.g., N.Y. Educ. Law §6527 (1979).Google Scholar
E.g., Minn. Stat. Ann. §145.64 (West 1984); Ill. Ann. Stat. ch. 110, §8-2102 (Smith-Hurd 1984).Google Scholar
See, e.g., Minn. Stat. Ann. §145.66 (West 1984); Ill. Ann. Stat. ch. 110 §8-2105 (Smith-Hurd (1984).Google Scholar
Model Bill to Establish Hospital Ethics Committees, in President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (U.S. Gov't Printing Office, Washington, D. C.) (1983) at 439 (app. F).Google Scholar
Id. §3(A).Google Scholar
“Only committee members shall attend that pan of the committee meeting during which the committee members discussed the case in an at-tempt to reach a recommendation.” Id. §4(B)(5).Google Scholar
Id. §2(B)(1), and (2); §1 (D).Google Scholar
See Institutional Ethics Committees and Health Care Decision Making. supra note 1, at 237–40.Google Scholar