Florida appeals court OKs access to peer review records

The physician under investigation is challenging the judges' decision to make an exception to peer review privilege for state disciplinary actions.

By Amy Lynn Sorrel — Posted Feb. 26, 2007

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A recent Florida appeals court decision allows the state to access peer review records when it investigates a physician for potential discipline.

The 2nd District Court of Appeal's December 2006 opinion turned on an interpretation of two seemingly conflicting statutes.

One law entitles the state to obtain a report of peer review disciplinary action from a hospital "providing that the investigations, proceedings and records relating to such peer review disciplinary action shall continue to retain their privileged status."

A second rule provides that any records generated by a peer review panel or medical review committee are protected from discovery in any civil or administrative action.

The first measure means that the state only has the right to access a summary report of the hospital's actions against a physician and the grounds for it, said the attorney representing the doctor in the case. Discipline falls under the heading of administrative action; therefore, peer review materials are off-limits, he added.

The court, however, had a different interpretation. When read together, the two laws indicate that the Florida Legislature intended the state Dept. of Health to have limited access to peer review information to launch an inquiry, but those materials would remain confidential for any other purposes, the court concluded. Peer review privilege applies to administrative actions other than a physician disciplinary proceeding, the judges found.

Any other interpretation would "render the statutory disciplinary process unworkable, by denying the department access to the records that initiated the disciplinary process and that are critical to the department's evaluation of the physician's competency," the opinion states. Due to an ongoing investigation, details of the case remain confidential.

The doctor at the center of the dispute was under review by the hospital where he worked when he voluntarily resigned his staff privileges in May 2005, court records show. The hospital notified the Dept. of Health of the doctor's resignation, which triggered a state inquest.

When the department subpoenaed hospital peer review records, the doctor challenged the request on the grounds that the information was privileged under state peer review protections.

Attorney Jon M. Pellett, who represents the doctor, said the court went too far by making a confidentiality exception for disciplinary proceedings.

"The Legislature provided a reporting scheme between hospitals and the [health department] that expressly prohibits the [agency] from having anything other than a report of the action and the grounds for that, which is enough to open an investigation," Pellett said. He added that the hospital had not taken any action against the doctor.

State laws already give the health department access to a variety of other information needed to conduct an inquiry, such as patients' medical and billing records, incident reports, and doctors' employment records, Pellet noted.

The disciplinary and peer review statutes were meant to protect peer review confidentiality "because if doctors knew the records would end up in the hands of an outside agency that could discipline them and affect their careers, they wouldn't participate," he said.

The doctor has asked the appeals court to reconsider its decision. If turned down, he plans to petition the state Supreme Court to take up the issue, Pellett said. It would be up to the high court whether to accept the case.

Dept. of Health spokeswoman Lauren L. Buzzelli said the court's decision recognizes a shared goal between state disciplinary proceedings and hospital peer review -- to protect patients and uphold the standards of the medical profession.

The agency maintains the confidentiality of any private records it obtains, she said, and the statutes were meant to guarantee that the state will not disclose peer review records for any purposes other than disciplining the doctor under investigation.

"Since the peer review materials cannot be used against doctors in other proceedings, there should not be a chilling effect," Buzzelli said.

American Medical Association policy states that peer review information should remain confidential and should not be subject to discovery in medical liability actions.

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Case at a glance

John Doe, MD v. Florida Dept. of Health

Venue: Florida 2nd District Court of Appeal
At issue: Whether the Florida Dept. of Health can have access to peer review records when conducting a disciplinary investigation of a physician. The court said yes.
Potential impact: The doctor in the case says that allowing outside agencies to obtain peer review information will deter doctors from participating because they risk becoming the subject of a disciplinary or medical liability action. The state says the information cannot be used against doctors in other proceedings, and it is necessary to ensure patient safety.

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