Florida Supreme Court may look at peer review confidentiality

Two Florida appeals courts have ruled that a hotly debated constitutional amendment lifts the cloak of confidentiality in peer review proceedings. But disagreement over one aspect of the measure, which gives patients access to records related to medical errors, could send the matter to the state Supreme Court.

Both appeals courts determined that Amendment 7, passed by voters in a November 2004 ballot initiative, preempts earlier statutes that protect peer review, credentialing and risk management documents from being used in medical liability lawsuits. As a constitutional amendment, the measure also overrides legislation passed in June 2005 to preserve the confidentiality of records dealing with "adverse" medical incidents, judges found.

But the two courts conflicted over whether peer review and other confidential documents created before the amendment passed should be opened retroactively. Judges from both courts asked the Florida Supreme Court to decide the matter.

If the high court takes up the cases, physicians hope to open the larger question of whether such documents should be public at all.

"We don't believe the amendment had anything to do with removing the privileges that had been in Florida law for years protecting the confidentiality of peer review," said John M. Knight, general counsel of the Florida Medical Assn., which filed a friend-of-the-court brief in the case before the 1st District Court of Appeal.

Regardless of whether disclosure is retroactive, open access would have a chilling effect on peer review, the FMA argues. The group plans to file a brief urging the high court to overturn both appeals court rulings, Knight explained.

Both interpretations would be a detriment to doctors and patients "because peer review is one of the essential functions of hospitals to ensure that you have quality of care and protect patient safety because confidentiality encourages doctors to come forward and report errors," Knight said.

For now, the appeals court decisions are in full force, and physicians need to be aware that peer review documents are open to the public, Knight explained.

In the area comprising the 1st District, the amendment applies retroactively to peer review documents.

If the rulings are not overturned, "it's going to totally destroy the effectiveness of peer review," Knight said.

Trial lawyers disagree. They argue that Amendment 7 was intended to open records to which patients did not previously have access so they can make more informed choices when picking their doctors. They also say the measure should be applied retroactively.

"Otherwise it would be ineffective because patients would have no database of information," said Philip Burlington, chair of the amicus committee for the Academy of Florida Trial Lawyers.

"How are patients going to evaluate their health care providers when there is nothing to evaluate?" he asked. The AFTL also filed a friend-of-the-court brief in the 1st District case on behalf of Floridians for Patient Protection, which sponsored Amendment 7.

A decision by the high court whether to take up the cases is not expected for several weeks.

Both appeals courts agreed that the amendment opens up peer review documents to discovery. It states that "patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident."

In Florida Hospital Waterman v. Buster, the 5th District Court of Appeal stated that the effect "is intended to change Florida law by eliminating [statutory] privileges to the extent that such information is discoverable during the course of litigation between a patient and his or her health care provider," Judge Thomas D. Sawaya wrote.

Similarly, in Notami Hospital of Florida v. Bowen, the 1st District Court of Appeal concluded that the 2005 legislation goes against the intent of the 2004 amendment because the legislation "drastically limits or eliminates discovery of records," Judge Paul M. Hawkes wrote.

Past or present?

As for how far back patients could delve into such reports when bringing medical liability lawsuits, however, the courts saw differently.

The 5th District determined that hospitals and physicians have a right to expect that earlier laws protected the confidentiality of reports created before Amendment 7 was implemented. Therefore, it should apply only to adverse medical incidents recorded from that date forward.

The 1st District disagreed. It stated that "the hospital's 'right' is no more than an expectation that previously existing statutory law would not change."

Adhering to a broad definition of "any" adverse medical incidents and of "patients" to include anyone who previously received treatment, the 1st District concluded that Amendment 7 "expresses a clear intent that the records subject to disclosure include those created prior to the effective date of the amendment."

The effective date "merely sets forth the date patients obtained the right to receive the records requested," the court emphasized.

But 1st District Judge Richard W. Ervin dissented. "I have found nothing in the language of the amendment manifesting an intent that it be applied retroactively," he wrote.