Harrison v Munson Hospital leaves the Court of Appeals for a second time on its way to the Supreme Court to possibly consider whether or to what extent peer-review documents can serve as a basis for attorney sanctions.

The Supreme Court is once again being asked to address the question of whether a peer-review document can serve as a basis for attorney sanctions.  The Plaintiff in Harrison recently filed its Request for Leave from a Court of Appeals opinion vacating an award of sanctions by the trial court for a second time.

In its first review of the case, the Court of Appeals held that the facts in a peer-reviewed document were not privileged and could serve as a basis for sanctions against an attorney who presented a defense inconsistent with the facts stated in the document.  The Michigan Supreme Court overruled this holding in a companion case and remanded the Harrison case back to the trial court, as it was not clear if the privileged status of the facts included in the peer-review document were central to the trial court’s decision to impose sanctions.  The trial court again awarded sanctions, finding what the defense offered could not be true based on the facts contained in the peer-reviewed document.

More recently, the Court of Appeals made the simple statement that a party/attorney could likely be sanctioned if it presented a defense it knows to be untrue based on the peer-review document.  Nonetheless, it did not feel it needed to decide the issue at that time.  Instead, it held that the trial court had erred in re-imposing the sanctions when there was sufficient ambiguity in the facts contained in the peer-reviewed document to allow the defendant to credibly present its defense at trial.  It reversed the trial court’s sanctions award.

Significant questions remain as we await a decision by the Supreme Court on whether to grant leave.  Some of the more pressing questions include whether the scope of the peer-review privilege precludes an in-camera inspection by a trial court to see if the defense is consistent and, if so, whether the facts contained in a peer-reviewed document can serve as a basis for attorney sanctions.  It’s not clear now whether the Supreme Court will provide answers to these questions.  We will keep you updated on what transpires and are available for consultation on the issues raised in the Harrison case.

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