Sometimes medical malpractice clients assume that they have a “slam dunk case” when they learn that there has been disciplinary action by the Maryland Board of Physicians.
But under Maryland law, specifically § 14-410(a) of the Maryland Health Occupations Article, minutes or notes taken in the course of determining the denial, limitation, reduction, or termination of the employment contract of any physician in an alternative health system are not subject to review or discovery by any person nor are any finding made by the Board subject to subpoena or discovery.
In other words, these documents or findings from the medical board are not only inadmissible but are not even discoverable. This may seem unfair from the patient’s perspective. For good reason, the findings of the medical board and the doctor’s statements or omissions might apply to the patient’s medical malpractice lawyer’s effort to support the claim against a negligent doctor.
Then why are the findings inadmissible? The purpose behind the Maryland medical peer review privilege is not to foster justice in individual medical malpractice cases but for an effective review of medical care so that it can be improved. Confidentiality is considered essential to the peer review process because doctors hate criticizing other doctors as it is. If we expose those doctors to fears of exposure to involvement in a medical malpractice case, they may wish to avoid loss of referrals from other doctors, or even from becoming a litigation target themselves (far less likely but feared by doctors involved in the peer-review process).
Accordingly, this process may harm individual patients who have been harmed by medical negligence, but it is believed for the health care system as a whole. Medical malpractice lawyers do not like the rule, but it probably is a good rule for overall medical care in Maryland.