Cracks in the Peer Review Wall?

Krusac v. Covenant and Harrison v. Munson:
Cracks in the Peer Review Wall?

On January 30, 2014, the Michigan Court of Appeals decided Harrison v.
Munson1 in favor of Jean Harrison. Ms. Harrison was severely burned during a
procedure at Munson Hospital in Traverse City. Virtually everyone associated with the
case testified that they “had no idea” what had happened in the course of the procedure
that would cause her to be burned by the Bovie device.2

Once trial started, a witness testified that she had completed an incident report.
An inquiry was made as to whether that incident report contained the facts surrounding
the procedure and the burn. The witness answered in the affirmative. The Court
demanded to see the incident report. The trial court, Judge Philip Rodgers after an in
camera review then declared a mistrial and imposed sanctions against Munson Hospital
for essentially engaging in a fraud on the Court with regard to its defense of the case.
The defendant appealed to the Michigan Court of Appeals claiming “peer review,
peer review, peer review.” The Court of Appeals clearly understood the importance of
the peer review process but pointed out that the privilege was not intended to cover up
facts, not intended to prevent a patient from knowing the facts of how she came to be
injured, and further not intended to allow a fraud to be perpetrated on the Court in the
defense of the case. Defendant subsequently sought leave to appeal to the Supreme

In the interim, the Michigan Supreme Court granted an application for leave in the
matter of Krusac v Covenant Hospital.4 Krusac arises out of injuries sustained by
Dorothy Krusac when she rolled off of the examination table in the Cardiac Cath Lab at
Covenant. The procedure notes merely document that Ms. Krusac fell; there are no
details provided. Subsequent medical consultations indicated that the fall was
unwitnessed by staff. Four years later, three individuals indicated in deposition
testimony that the plaintiff “didn’t really fall” from the table. They testified that when Ms.
Krusac began the process of falling from the table, the three staff members said that
they managed to catch her before she hit the floor.

Given all of the conflicting information, Plaintiff sought the incident report that
was completed immediately after Ms. Krusac’s fall. Defendant claimed “peer review.”
After conducting an in camera review, the trial court ordered production of the first page
of the “Improvement Report.” The defendant sought an emergency application for leave
to appeal.

It should be noted that the same defense attorney who defended Munson in
Harrison was also representing Covenant in Krusac.

It is apparent that the medical malpractice insurers and hospitals are now
concerned that the information they seek to shield under the sanctity of peer review is
now under fire.

How the Michigan Supreme Court decides this case will have significant
ramifications for health care providers and medical consumers. Hopefully, the decision
will encourage honesty and candor in all aspects of health care.

1 Harrison v Munson Healthcare, Inc, 304 Mich App 1; 851 NW2d 549 (2014)
2 A Bovie is an electrosurgical device allowing incisions to be made with reduced blood
3 That application is currently being held in abeyance pending the decision in Krusac.
Harrison v Munson Healthcare, Inc, __ Mich __; 847 NW2d 498 (2014)
4 Krusac v Covenant Medical Center, Inc, 496 Mich 855; 847 NW2d 499 (2014) (the
Court of Appeals denied the application)

This article appeared in the Fall 2014 Issue of Negligence Law Section E-News and was co-written by Jules Olsman and Stephanie Arndt