Peer Review and Amendment 7

In the United States, Joint Commission on Accreditation of Healthcare Organizations (JCAHO) standard MS 4.90 requires all hospitals to conduct peer review. Physicians who participate in these peer reviews often do so with the impression and expectation that their participation will assist hospitals to retain a quality standard, and believe that providing this information will not place their reputation and pocketbooks in risk against potential plaintiff's and their attorneys.

However, what happens if the doctor is directly, or even indirectly, involved in a medical incident and said incident becomes the topic of discussion during a peer review?

It was once the case that, under the Health Care Quality improvement Act of 1986, physicians who where members of peer review had immunity for their peer review discussions so that they could frankly discuss quality improvement without fear of legal reprisal. Prior to 1986, many states legislatures had enacted statutes that veiled these proceedings for added protection.

In 2004 , Florida's Amendment 7 (i.e., Article X, Section 25 of the Florida Constitution) passed. Amendment 7, nobly titled Patients Right to Know About Adverse Medical Incident, has been interpreted by the Florida Supreme Court to allow access to what a physician, or other provider of health care, says during the peer review as it is discoverable in a litigation proceeding against the physician. Peer review experts believe Amendment 7 is the first ruling in the country that broadly allows patient access to review meeting notes. What the health care practitioner says during a peer review could now be "Exhibit 1" of a plaintiff's case against the doctor during a lawsuit and in front of a jury.

Arguably, Florida Plaintiff's trial lawyers pushed for the amendment because they believed not enough was being done to correct the actions of bad doctors. They argued that a more transparent and open system would prevent errors from going unpunished, and help patients make educated choices. The fallout for the physician is that what was once a veiled and confidential open discussion of a physician's performance may now be accessed for use against that very physician in litigation.

The lawyers at the Presley Law Center have developed an innovative and novel approach to the issue of a physician's Code15 report and the peer review process. The legal team at the Presley Law Center argues the traditional notions and protections during the peer review process, and takes a proactive approach prior to the doctor divulging any information during the peer review process for easier and more effective protection of the records.

This process emphasizes and implicates the protection of the attorney-client privilege and attorney work product privilege, which is completely unrelated to the inroads upon which Amendment 7 has made into the once, traditionally veiled peer review process.

 

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