The Florida Supreme Courts recent decision on Amendment 7, the “Patients Right to Know About Adverse Medical Incidents” law, created as many questions as it answered. The Courts opinion in Florida Hospital Waterman, Inc., v. Buster struck down the legislatures limitations on disclosures. It held that the constitutional amendment giving patients access to records of adverse incidents, including some peer review records, applies retroactively to documents created before Amendment 7 passed in November 2004.
Almost as soon as the decision was published, medical staff members who had adopted a “wait and see” attitude began notifying hospitals that they will no longer participate in peer review activities. Fearing subpoenas forcing them to testify against colleagues based on notes and comments made during peer review, those who didnt refuse to participate have indicated that they will only participate in drastically different peer reviews. Hospitals, which are required to conduct peer reviews, are challenged to address the concerns of their medical staffs while protecting the integrity of the peer review process. State licensing laws, Joint Commission accreditation, and Medicare Conditions of Participation all make peer review essential. Hospitals first must assure physicians that circumstances are not as dire as these reactions would indicate. Peer review committee records are not wholly exposed, and their members are no less protected than they were prior to Amendment 7s passage. Further, hospitals should review and revise their peer review procedures to minimize disclosures under Amendment 7. Amendment 7 gives access to records, not the testimony of individual reviewers. Among the concerns raised by peer reviewers is that Amendment 7 will provide a vehicle for medical malpractice litigants to make the reviewers unwilling experts on behalf of plaintiffs. On the contrary, the amendment does not require committee members to testify regarding their findings or determinations of adverse incidents. Furthermore, Amendment 7 did not undo existing protections for medical records, and does not supersede Federal and state privacy laws. Hospitals risk, quality and medical staff managers should work with counsel to design and implement effective peer review policies and procedures that satisfy state and Federal regulations, as well as protect the important practice of self-auditing. They should also establish criteria for identifying documents that meet Amendment 7s definitions to minimize inadvertent or unnecessary disclosures, and educate committee members and staff on creating records without superfluous commentary. Hospitals may also consider establishing policies for referring cases for external review. An effective peer review process combines an understanding of legal requirements as well as the roles and responsibilities of peer review committee members. Hospital counsel can assist managers in drafting these policies and creating a peer review manual to reassure committee members of the importance and security of the peer review process. Peer review remains an effective and vital self-assessment tool. In light of recent court decisions, medical staff may need reassurance that their participation remains necessary and protected. Yet, with proper planning and safeguards, hospitals can continue to perform peer reviews that not only focus on patient care and safety, but also support the integrity of the process.
