Legal: New Era
Features
Written by Martin Goldberg   
Thursday, 01 May 2008
Legal: New Era - Health Executive - RedCoat Publishing
The recent Florida Supreme Court ruling on peer-review privileges may signal a shift in patient and physician rights.
Many healthcare professionals are wondering whether the recent ruling in Florida is the beginning of the end of peer-review confidentiality. In March, the Florida Supreme Court ruled on an amendment to the state constitution that may eventually be addressed by the US Supreme Court and could provide the rest of the nation a glimpse of the future for patient and physician rights.

For decades, the peer-review process and accompanying privileges, which keep internal hospital quality-of-care findings confidential and prevent discovery during litigation, have been indispensable throughout the US. Indeed, they have served as the foundation for the open and candid review of a physician’s performance by his or her peers.

The information uncovered and discussed during the peer-review process typically forms the basis for corrective action, anything from remedial training to the revocation of a physician’s medical staff membership and clinical privileges.

Healthcare providers, state legislators, and Florida courts have long maintained that without the protection of these privileges from discovery, the peer-review process would be rendered ineffective because one’s peers may be less than candid, and participants in the peer-review process would be exposed to unwarranted litigation interference and perhaps civil liability.

Notwithstanding these long-held principles, voters in Florida recently disagreed with the protection provided to physicians and effectively eliminated peer-review privileges in 2004 through the enactment of Amendment 7. Amendment 7, commonly known as the Patients’ Right to Know About Adverse Medical Incidents amendment, sparked a flurry of litigation in the courts across the state, and on March 6 of this year, the Florida Supreme Court rendered its first decision on the issue, with an outcome that can fairly be described as extremely unfavorable for hospitals and physicians.

Broad access
The Supreme Court upheld the purpose of the amendment, providing patients (including prospective patients) broad access to healthcare records, including documents traditionally protected in the peer-review process. Specifically, patients are entitled to records made or received by a healthcare facility or provider relating to adverse medical incidents, which are defined as records that encompass any of the following: medical negligence, intentional misconduct, and any other act, neglect, or default of a healthcare facility or healthcare provider that caused or could have caused injury to or the death of a patient.

Not only are these records now discoverable, the time period for a proper request is unlimited, as the Supreme Court found the amendment to be retroactive, as well as effective from the date of its passage in 2004. This broad window will act as an open invitation to patients and malpractice counsel to ask for thousands of records from various healthcare facilities. The burden placed on hospitals to comply with such requests cannot be underestimated.

The most serious obstacle facing healthcare executives in Florida will be confronting medical staffs that are likely to become extremely hesitant to participate in peer-review processes. Of course, without an effective peer-review mechanism in place, hospitals face significant federal and state regulatory sanctions—quite an operational Serbonian Bog.

Hospitals and healthcare facilities are already grappling with the issue of recruiting physicians for committee meetings, and administrators will have to enact a plan to address physicians’ concerns on this issue. Some physicians are seeking independent legal advice about whether they should attend peer-review meetings and, if so, what they should say. Some hospitals are even considering including an attorney in every peer-review meeting so they can invoke attorney-client privilege, an argument that will likely prove ineffective in the long run.

Immunity from suit
Hospital administrators do, however, have a number of good points they can make to participating physicians. First, administrators should remind physicians that an effective peer-review process is legally mandated and that both hospitals and medical staffs must find a way to continue with the process.

Second, to provide some comfort moving forward, administrators can remind doctors that the law still allows their names to be redacted from written materials and documents should disclosure be required under Amendment 7.

Third, physicians may not be compelled to testify about matters that occurred within the peer-review process, which keeps them largely off the radar screen of plaintiffs’ counsel in malpractice lawsuits.

Lastly, these physicians still have immunity from suit for good-faith participation in the process, and many hospitals’ corporate bylaws provide indemnification as well as the provision of defense counsel should the participating physicians be subpoenaed or sued.

Florida’s Amendment 7 has ushered in a new era in healthcare that focuses on the will of the people and their desire for medical information, either to be better educated consumers of medical services or to rectify perceived wrongs through the court system. There are certain casualties to be seen in the process, with the foremost being the medical peer-review process that for so long has addressed concerns regarding physicians’ competence and conduct to prevent actual harm to patients.

Hospital administrators in Florida find themselves at the forefront navigating this rough terrain, while the rest of the country watches carefully, hoping to catch a glimpse of their future roadmap.

Martin Goldberg, a founding partner of Lash & Goldberg LLP, represents national and regional corporations and executives in all aspects of civil, commercial, and regulatory litigation and dispute resolution arising in healthcare. He can be reached through www.lashgoldberg.com.
 
< Previous Story   Next Story >