Appeals court hears hospital challenge of NLRB peer review decision

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit today heard oral arguments in a case brought by Menorah Medical Center in Overland Park, KS, to overturn a 2015 National Labor Relations Board decision that directly threatens the confidentiality of the hospital peer review process. The board’s decision, the hospital argues, erroneously required it to produce peer review documents to the union; incorrectly struck down the hospital’s rule requiring confidentiality of discussions at peer review proceedings; and required the hospital to permit direct participation in the peer review process by third-party union representatives that could risk a general waiver of peer review privilege. Judge Kavanaugh in direct questioning of NLRB counsel focused on peer review as an essential way to monitor and improve health care delivery and the importance of strict confidentiality to its success, quoting directly from a friend-of-the-court brief filed by the AHA, Federation of American Hospitals, state hospital associations in Kansas and Texas, Texas Nurses Association and American and Texas Organizations of Nurse Executives. AHA, the Kansas and Texas Hospital Associations and Texas Nurses Association had previously supported the hospital before the board.