Where evidence of the way in which a given hospital record was produced or how it was used demonstrates that the information sought is privileged, a court should refrain from in camera inspection. This is especially important if the party seeking the allegedly privileged materials offers no reason to doubt a hospital's sworn statements. Accordingly, the Supreme Judicial Court of Massachusetts vacated the Superior Court judge's order compelling the production of hospital incident reports for in camera review.
Stanley W. Howard, a psychiatric patient at New England Deaconess Hospital (Deaconess), committed suicide by jumping from the fifth floor of the hospital parking garage. In so doing, he landed on pedestrian John F. Carr, who sustained personal injuries. Carr sued the administrator of Howard's estate, who in turn filed a third-party action against Deaconess and others for contribution and wrongful death damages.
Carr served a subpoena on Deaconess for incident reports concerning Howard's death. Deaconess refused to furnish the documents, maintaining that they were necessary to the work of a medical peer review committee and therefore privileged. When the Superior Court ordered their production for in camera review, Deaconess unsuccessfully sought relief from a single justice of the Appeals Court. The hospital then petitioned a single justice of the Supreme Judicial Court, who referred the matter to the full court.
The court characterized in camera review as a measure of last resort: "Determining whether the medical peer review privilege applies turns on the way in which a document was created and the purpose for which it was used, not on its content." The court then concluded that Deaconess successfully proved that the privilege applied by supplying uncontroverted affidavits asserting (1) that its incident reports were necessary to comply with the regulations of the state board of registration in medicine, and (2) that such incident reports are necessary to the work product of its peer review committees. Ultimately, an in camera review of incident reports should only be turned to "as a last resort" in the discovery process.
