Florida Supreme Court lifts past peer review confidentiality

The Florida Supreme Court ignored decades of peer review protections when it ruled March 6 to allow patients to examine records on past adverse medical incidents, physicians and hospital organizations say.

The 4-3 high court decision says a state constitutional amendment giving patients access to records related to adverse medical incidents applies retroactively and opens up related peer review documents created before the amendment passed via ballot measure in November 2004.

Amendment 7 -- dubbed the "Patients' Right to Know About Adverse Medical Incidents" -- also overrides certain legislative provisions passed in June 2005 to implement the measure and preserve the confidentiality of peer review records created before its adoption, the majority concluded. Justices ruled part of the 2005 statute unconstitutional because it restricted the amendment's purpose in making an "immediate change" in the law governing access to medical incident records.

The high court decision was prompted by a conflict that arose in the lower courts in 2006. Two appeals courts agreed that Amendment 7 preempted earlier statutes shielding peer review records but split over whether the measure affected only future peer review documents.

The Supreme Court said no.

The language in the amendment and the ballot measure "make it abundantly clear that the chief purpose of Amendment 7 was to do away with the legislative restrictions on a Florida patient's access to a medical provider's 'history of acts, neglects or defaults' because such history 'may be important to a patient,' " the majority opinion states. "Medical providers have never been granted a substantive vested right in the secrecy of information contained in the limited medical records in question."

The hospital industry, which filed a friend-of-the-court brief through the Florida Hospital Assn., is asking the Supreme Court to reconsider its decision.

Meanwhile, physicians and hospitals say the ruling undoes 20 years of peer review protections promised under the law before the amendment came along.

Jeffery M. Scott, director of legal and governmental affairs for the Florida Medical Assn., said doctors "had the expectation that these documents would remain confidential, and the court said that wasn't a legitimate expectation." The medical society was not involved in the case but supported the 2005 legislation. He said the decision could change the way peer review is handled and "make it much harder to accomplish."

For example, peer review committees may use less documentation in an effort to avoid possible disclosure of their discussions. Doctors also may be reluctant to participate in peer review, knowing that such records are open to public inspection, whether for patients' personal use or in court, Scott said. Ultimately, patient safety will suffer, he said.

Trial lawyers disagree and praised the high court for protecting patients.

"This will lift the veil of secrecy ... and make sure the health care community works together to make sure when we find a problem, we get at the root of it and make sure it doesn't happen again," said Frank M. Petosa, president of the Florida Justice Assn., a trade group for trial lawyers. The organization also filed a friend-of-the-court brief in the case.

Petosa said the amendment -- which voters passed by 81% -- was meant to open records to which patients did not previously have access so they could make better health care choices.

"When we have to make decisions that affect our health and safety, we have to have the information to make sure we are educated consumers. That's what the amendment did and the Supreme Court reaffirmed," he said.

Dissent: Privilege promise broken

But three dissenting judges said the amendment was not intended to apply retroactively and erase past legal protections on old peer review records.

"The straightforward fact is that the state made a promise by statute that if health care providers were open and frank about problems in care and treatment, their openness and frankness would be protected from disclosure," Justice Charles T. Wells wrote.

While that statutory right can change prospectively, doctors still have a right to rely on the prior confidentiality protections granted them under the law, the dissenting opinion states. But "by this [majority] decision, the state's promise is broken," Wells stated. Privileged peer review communications "will have a whole new character," he noted.

The FMA's Scott recommended that doctors work with their medical staff counsel to determine how best to proceed with peer review under the court decision.

William A. Bell, general counsel to the FHA, said the hospital industry is still evaluating the ruling's potential impact, but he agreed that peer review committees are likely to be more cautious. The decision does not limit a judge's authority to decide what information may be used in court, he added.