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Tips for the Medical Staff Peer Review Process in FL

 |  By Margaret@example.com  
   August 10, 2010

They call Missouri the “Show Me State,” but perhaps that name is better suited for Florida. Amendment 7—otherwise known as the Patient Right to Know about Adverse Medical Incidents Act—makes what would normally be considered protected peer review information discoverable to the public.

Many states have taken strides to protect peer review documentation from discoverability in an effort to promote thorough and candid peer review and encourage physicians to report near misses. Thus, if Dr. Smith makes a mistake that results in a near miss and subsequently works with the medical staff’s peer review committee to improve his performance, he doesn’t have to worry about a lawyer digging up and using the documentation of those efforts against him in the future.

However, Florida voters passed Amendment 7 in 2004 under the belief that they have the right to know if a physician is or has been involved in any type of adverse medical event. In the Sunshine State, a patient or plaintiff’s lawyer can subpoena peer review documentation regarding any physician for any reason—no holds barred.

In theory, it makes sense for patients to have the right to know if their physician has been involved in an adverse event, but Amendment 7 has caused physicians and medical staffs in hospitals to stifle peer review—the primary function of the medical staff.

As case law continues to build, it is becoming clear just how broad this amendment is. In 2008, the Florida Supreme Court ruled in Notami Hospital of Florida, Inc. v. Bowen and Florida Hospital Waterman, Inc. v. Buster that Amendment 7 trumps all other Florida laws that protect peer review privilege. In July 2010, The District Court of Appeal of Florida ruled that the defendant hospital must produce a risk management incident report, a peer review form, and other peer review documents to the plaintiff in Baldwin v. Shands. This most recent decision emphasizes just how much information patients—and their lawyers—have at their fingertips.

“There has been a move to reduce or eliminate documentation on medical review activities. A lot of peer review committees now do not take minutes of their meetings, and if they do, they are sanitized. The minutes are broad, and no patients or physicians are identified,” says George Indest, Esq., an attorney with The Health Law Firm in Altamonte Springs, FL.

However, choosing to keep only sketchy documentation of peer review activities can have a negative effect on peer review as a whole. According to Indest, inadequate documentation can result the medical staff’s inability to obtain meaningful feedback from the healthcare providers involved in specific incidents when they are unable to identify the specific incident or patient about whom feedback is sought.

They may also be unable to comply with certifying or accrediting organizations’ guidelines and requirements or unable to demonstrate compliance with state requirements for peer review activities.

Jonathan H. Burroughs, MD, MBA, FACPE, FACEP, CMSL, senior consultant with The Greeley Company, suggests that medical staffs in Florida should hire an independent attorney to act as a member of the medical staff peer review committee and keep minutes. The minutes should be sparing. “Don’t write down who said what about whom. Only document that you’ve reviewed the case and what the findings and improvement process are. In other words, you should just document the outcomes, not the discussion.”

The minutes then live with the attorney’s office, rather than with the medical staff, and are therefore protected under attorney/client privilege. It is important that the attorney who is on the peer review committee is not the attorney who regularly represents the medical staff or the attorney who regularly represents the hospital to avoid conflicts of interest.

“Be sure that attorney work product information and documentation is prepared only by your attorneys and the paralegals working directly for them and do not use routine attorney work product documents and information in your peer review activities. Otherwise they may be discoverable,” adds Indest.

Burroughs also suggests that hospitals join or create a patient safety organization under the Patient Safety and Quality Improvement Act (PSQIA). Under this act, peer review documentation that is reported to a patient safety organization is considered patient safety work product and is not discoverable or permissible at a fair hearing or in a court of law.

Although this is a reasonable strategy for protecting peer review documents, Burroughs warns that if the hospital thinks that it may take action against a physician, it can’t use patient safety work product that has already been reported to a patient safety organization against the physician during the fair hearing. “I always tell clients that they have to consider whether they are going to take professional review action at some point. If they do, they should keep the body of evidence.”

Indest adds that taking advantage of the provisions under PSQIA is a smart idea. “A federal privilege will, in most cases, take precedence over any conflicting state law—including this one.”

Liz Jones is an associate editor with HCPro. She writes Medical Staff Briefing, Hospitalist Leadership Advisor, and Credentialing & Peer Review Legal Insider. She can be reached at ejones@hcpro.com

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Margaret Dick Tocknell is a reporter/editor with HealthLeaders Media.
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