Credentialing records open in liability cases -- Florida court

Another case pending before the state Supreme Court could define further which hospital records fall outside the peer review privilege.

By Amy Lynn Sorrel — Posted June 11, 2007

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Whether a recent Florida Supreme Court ruling signals a chipping away of peer review protections remains to be seen, some lawyers say.

The state's high court in May found that hospital lists delineating physician privileges are fair game in medical liability lawsuits and that peer review statutes do not prevent plaintiffs from accessing them.

The patient in the underlying case had complications during an obstetric procedure and sued the doctor for negligence. She alleged that the hospital did not properly credential the physician who performed the surgery.

The doctor and hospital argued that revealing a hospital's decision about physician privileges would compromise the confidentiality of the peer review process. Ultimately, they said, it could hurt the quality of care.

In a unanimous court decision, justices reaffirmed that existing peer review statutes protect internal documents generated within confidential peer review proceedings from discovery in lawsuits. But the court found hospital credentialing lists to be a separate hospital record and said that nothing in peer review laws shield hospital records that might contain information provided by, or partially based upon, peer review committee actions.

"The availability of such information would appear fundamental and essential to any patient's decision to consent to a medical procedure to be performed by a physician in the hospital," states the opinion in Brandon Regional Hospital v. Maria Murray.

For now, lawyers on both sides of the issue say the ruling appears to leave existing peer review protections intact. Whether it is a step toward encroaching upon that confidentiality depends on how future courts determine which hospital records fall under the peer review privilege, they say.

"The fear is this might be a hole in the dam. But the court made a strong distinction and isolated what a plaintiff can get," said attorney Christopher J. Schulte, who represented ob-gyn Wayne S. Blocker, MD, in the case. The doctor settled earlier but denied any wrongdoing.

Brandon Regional Hospital declined to comment for this story.

Schulte said hospital privileges, typically decided through a credentialing board of the peer review committee, are an integral component of the peer review process and should be protected. But the court limited the scope of discovery of those documents to "a single sheet of paper," or the final report of the privileging process, he said, while maintaining that the records used in determining the privileges stay confidential.

That list of credentials also could help in the defense of a case, Schulte noted.

Edwin P. Krieger, who represented plaintiff Maria Murray in the lawsuit, agreed that the decision "reconfirmed the sanctity of peer review." For example, records pertaining to a peer review committee's investigation into a doctor's background, patient complaints or medical liability claims history, remain off-limits, he said.

But Krieger said he believes that doctors and hospitals often use peer review protections to prevent patients from accessing information they are entitled to know about. For example, he said, hospitals already are required to submit credentialing records to other outside agencies.

"What this [decision] does is put a crack in that shield and says, wait a minute, maybe not every document that was touched by the fingers of the peer review committee is protected," Krieger said.

It gives plaintiff lawyers the opportunity to ask a trial judge to decide what kinds of hospital records are subject to the peer review privilege, he said.

A closely watched case due before the Supreme Court in June could be the first test.

In Florida Hospital Waterman v. Buster, justices will address the scope of a constitutional amendment that voters passed in 2004 to let patients review hospital records associated with "adverse" medical incidents.

Two appeals courts ruled last year that Amendment 7 overrides existing statutes protecting peer review, credentialing and risk management documents. But the courts disagreed over whether it retroactively opens records created before the measure passed. The conflict pushed the matter up to the high court, which will decide both how the statute applies and to what.

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