Protecting Peer Review and Quality Improvement Materials Under Ala. Code § 22-21-8

By Angie Cameron Smith

Healthcare institutions in Alabama invest substantial resources in quality assurance, peer review, and credentialing activities designed to improve patient care. These activities depend on candid internal assessments, frank evaluations of clinical outcomes, and honest reporting by medical professionals. The Alabama Legislature recognized that such activities would be chilled if the resulting materials were freely discoverable in litigation and enacted Ala. Code § 22-21-8, which establishes a broad confidentiality privilege for quality assurance and accreditation materials.

Scope of the Privilege

Section 22-21-8 defines protected materials broadly to include “written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff.” The statute’s protections extend to materials prepared by employees, advisors, or consultants of a hospital, clinic, or medical staff, as well as those prepared by employees, advisors, or consultants of an accrediting or quality assurance agency or body.

The materials created and used by a peer review or quality assurance committee “shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities.” In addition, no person involved in the preparation, evaluation, or review of such materials may be required to testify regarding evidence or matters produced during the quality assurance process, or as to any findings, recommendations, evaluations, or opinions generated through the process.

How Courts Have Interpreted the Privilege

Alabama courts have addressed the privilege in numerous cases and have established several key principles for healthcare institutions seeking to invoke the statute’s protections.

The privilege is not absolute. In Ex parte Affinity Hospital, LLC, 414 So.3d 95 (Ala. 2024), the Alabama Supreme Court held that the peer-review statute does not exempt quality assurance materials entirely from the procedural requirements of discovery. Specifically, a hospital claiming the privilege was still required to provide a privilege log identifying the materials withheld. The court explained that the peer-review statute and the general discovery rule “operated concurrently, establishing confidentiality of quality-assurance materials while also requiring adherence to procedural requirements of discovery rule.” Consequently, health care providers cannot simply refuse to acknowledge the existence of responsive documents by invoking a blanket privilege.

The privilege requires a demonstrated connection to quality improvement. In Ex parte Tombigbee Healthcare Authority, 260 So.3d 1 (Ala. 2017), the Court held that the quality assurance privilege did not protect information concerning a hospital’s hiring, training, supervision, retention, and dismissal of an employee who allegedly sexually assaulted patients. In that case, the hospital failed to demonstrate that investigations into allegations of sexual assault, conduct wholly unrelated to medical treatment, were undertaken to improve the quality of patient care. This case underscores that the privilege does not protect all internal investigations, but only those genuinely connected to quality assurance and the improvement of clinical care.

Establishing the privilege. In Ex parte Fairfield Nursing and Rehabilitation Center, L.L.C., 22 So.3d 445 (Ala. 2009), the Court found that a medical center sufficiently demonstrated the privilege through affidavits stating that the requested documents were created for quality assurance purposes, that the documents were needed to guarantee a high quality of care, and that confidentiality was necessary. This decision provides a practical roadmap for institutions seeking to establish the privilege through sworn testimony.

The Original Source Exception

Importantly, the statute contains a critical limitation: “Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation, quality assurance or similar materials.” In other words, a hospital cannot shield otherwise discoverable documents simply by routing them through a quality assurance committee. The underlying facts and original records remain accessible through standard discovery channels.

Practical Steps to Establish the Privilege

Based on the case law, healthcare providers seeking to protect peer review and quality assurance documents should consider the following:

Maintain clear documentation of the purpose behind quality assurance activities, including committee charters, meeting agendas, and resolutions establishing quality improvement objectives.

Recognize that some details related to the documentation may be discoverable as part of a privilege log. Therefore, consider the information included to ensure that it can be easily identified as privileged.

Affidavits may be necessary to establish the existence of the quality assurance program. Identify those knowledgeable about the process and the purpose of the documentation if information is requested.

Demonstrate a nexus to patient care improvement. Following the case law, be prepared to show that the materials were generated as part of an effort to improve clinical care quality, not merely as part of a general employment or administrative investigation.

Conclusion

Alabama’s quality assurance privilege under § 22-21-8 provides meaningful protection for peer review and quality improvement activities, but it is not absolute. Healthcare institutions must be proactive in documenting the quality assurance purpose of their activities and must comply with procedural discovery obligations even while asserting the privilege. By understanding the boundaries the courts have drawn, medical professionals and hospital administrators can structure their quality improvement programs to maximize the protection this important statute affords.

Angie Smith is a Partner at Burr & Forman practicing exclusively in the firm’s Health Care Practice Group.  Angie may be reached at 205-458-5209 or acsmith@burr.com.