The Future for Peer Review
By Maureen Glabman
Florida's Constitutional Amendment Chills Quality Community
For more than a decade, interventional cardiologist Jonathan Roberts has volunteered to meet once a month to conduct peer review. Roberts joins 14 physician colleagues representing specialties such as anesthesiology and neurology just after dawn in a Baptist Hospital of Miami conference room to pour over cardiac patient charts retrieved from the hospital's medical record department.
Each physician receives two charts earmarked in advance by a quality assurance nurse whose sole job is to discover adverse incidents. The note he or she attaches to the file may read: "patient died, patient had a stroke after procedure, patient stayed in the hospital ten days longer than is standard," or a host of other markers that indicate why the chart has come before the committee.
Doctors spend quiet time reviewing their documents and then discuss them. In about 95 percent of cases, the group deems the physician in question did not violate the standard of care--that the incident was a maloccurrence, not a medical error.
"Occasionally, we think maybe something could have been done differently to prevent triggering one of these events. Those discussions can be heated. It could lead to asking a colleague to take a course given by his or her specialty society," Roberts explains.
Since Nov. 2, 2004, however, such candid analysis of their colleagues among Baptist Hospital physicians has been tabled, and the process by which doctors learn from and correct their mistakes or behavior, thrown into a tailspin, Roberts says. That's the date Florida voters overwhelmingly approved an Academy of Florida Trial Lawyers-sponsored constitutional amendment that makes previously confidential peer review meeting notes available to patients. "The meetings are still ongoing, but we stopped doing anything useful," Roberts says--and doctors across the state echo his perspective.
Amendment 7 (now Article X, Section 25 of the Florida Constitution) exposes physicians under review to possible lawsuits by malpractice plaintiff attorneys, and in turn, opens doctors such as Roberts to libel and slander charges by professionals whose names he mentions. Peer review committee members may also be hauled into court to testify as plaintiffs' witnesses in medical malpractice cases. The notes give potential litigants more data, a stronger basis for lawsuits and additional opportunities for class action litigation.
"I'm afraid if I say something constructive [to a physician], it could be taken out of context by a plaintiff attorney, so I'm not going to render any opinion," Roberts says. "This is clearly a step backward as to what is best for patients."
Peer review experts believe Amendment 7 is the first ruling in the country that broadly allows patient access to peer review meeting notes. Previously, all 50 states and federal law guaranteed secrecy. Laws similar to Amendment 7 are under consideration in several other states, among them, Initiative 336, a Washington legislative proposal supported by the state's trial lawyers association.
Opening the process up to the public has "a chilling effect," says Robert Wise, M.D., vice president of standards for the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), Oakbrook Terrace, Ill.
"There will be absolutely no incentive for anyone--doctors, nurses or management--to address and discuss quality concerns in any significant way," adds Mark Anthony Kadzielski, a Los Angeles health care attorney and author of numerous articles on peer review. "Like West Nile Virus, this [Amendment 7] may well sweep from east to west. The chilling effect will be profound and widespread.We will all suffer as a result of driving such discussion underground."
To illustrate, Kadzielski cites a fictitious patient who falls out of bed, an adverse event that may or may not be the fault of the physician: The rails of the bed might have been broken, in need of maintenance; the patient might have been restless and taking psychotropic medication; the doctor might have prescribed the right medication, but the pharmacy sent the wrong dosage; the nurse on the 3 a.m. shift might have given the patient a triple dose of her medication. "Under Amendment 7, you're going to be reluctant to write an incident report for fear some attorney will ask for the report," he says. "The hospital never finds out how to correct the problem."
With limited exception, existing laws protect peer review confidentiality by: granting qualified immunity from lawsuits to people and institutions as long as peer review committee actions are without malice; by declaring that peer review notes are privileged and inadmissible in court; and by protecting the confidentiality of the information.
Massachusetts allows public access to some peer review committee documents through the state's Department of Public Health under the Freedom of Information Act. And, Kentucky has strongly written laws in support of confidentiality, but those laws have been routinely shredded in its courts for decades.
"It [Kentucky peer review law that protects the process] sounds great, but the Kentucky Supreme Court has determined it's not constitutional. Our statute is worthless," says Brian Brezosky, general counsel to the Kentucky Hospital Association. "Three times, the Kentucky Legislature has passed laws protecting peer review, and three times the Kentucky Supreme Court has determined the laws are not constitutional because they violate a Kentucky citizen's common law right of recovery. Injured parties take precedence."
Florida trial lawyers pushed for the amendment because they believed not enough was being done to correct the actions of bad doctors. A more open system, they felt, would prevent errors from going unpunished and help patients make educated choices when deciding among doctors and hospitals.
"If peer review was working adequately, we wouldn't have the rampant epidemic of medical negligence cases," explains Jacqueline Imbertson, president of the group Floridians for Patient Protection (FPP), the Academy of Florida Trial Lawyers' political action committee.
"No longer will patients have to rely on word of mouth to find good doctors or hospitals or avoid bad ones. Amendment 7 will open up to public scrutiny a medical community cloistered behind a veil of secrecy," according to FPP's Web site.
But peer reviewer Roberts and other Florida physicians, say the amendment has had the opposite effect by shutting down a system enabling doctors to police their own. Moreover, critics contend the amendment is self-serving, in that open peer review provides a treasure trove of cases for plaintiffs' lawyers.
How It Began
The earliest known peer review can be traced to the American College of Surgeons. In 1918, the College sought to standardize hospitals, organize medical staffs and set minimum standards. Today, virtually all U.S. hospitals conduct peer review--JCAHO standard MS.4.90 requires it. Physicians participate without compensation, other than perhaps a free meal, and such assistance allows hospitals to retain a quality standard while preserving their reputations and pocketbooks from the acts of incompetent and unethical practitioners. Taking it seriously is crucial.
"Hospitals can be found guilty of corporate negligence if peer review is done haphazardly," says peer review expert Charlotte Jefferies, a partner in the law firm of Horty, Springer & Mattern, Pittsburgh.
To guarantee physician participation (and under pressure from the medical community), the federal government passed the Health Care Quality Improvement Act in 1986. It was the result of physician outrage over the landmark Patrick v. Burget decision in which an Oregon surgeon sued peer review doctors who helped to terminate his clinic privileges. The Act gives immunity from civil lawsuits to peer review panels so they may frankly discuss quality improvement without fear of legal reprisal, as long as their actions are not malicious. Prior to 1986, many state legislatures had enacted statutes that veiled proceedings.
Though peer review doctors are sworn to mete out impartial decisions regarding problem doctors, the process has taken it on the chin, accused of bias and conflicts of interest. Over time, there have been allegations and lawsuits that peer review doctors with axes to grind use the review to nail whistleblowers, to force doctors out who invest in competing surgery centers, and to sweep medical mistakes under the rug.
Still, peer review is the only educational process that helps rehabilitate doctors, as opposed to the strict disciplinary measures they face from state medical boards, the federal Office of the Inspector General and, to a lesser extent, medical societies. At Baptist in Miami, for instance, peer reviewer Roberts says physicians are offered mentoring, preceptorships and other remedial training.
Those who refuse the panel's suggestions, or who are grossly negligent, are referred to the hospital's Medical Executive Committee with recommendations to the board that could include removal of hospital privileges, a drastic measure with serious consequences. Loss of privileges is reported to the state Department of Health for possible action on the medical license and to the National Practitioner Data Bank, so the physician's record follows him if he moves to another state, and may affect whether privileges are granted at any other hospital. Moreover, it could influence whether the physician is allowed to participate in Medicare, Medicaid, on an HMO or other insurance panel, which could have a significant impact on earnings.
Jefferies' firm has defended many doctors who have had their staff privileges suspended, most often for incompetence or misconduct. For example, in one case, a doctor had a memory loss in the midst of a procedure. In others, doctors repeatedly threw things, berated staff or patients, or sexually harassed colleagues.
"One to two percent of physicians simply ought not to be practicing because they are chronically addicted to drugs or alcohol, have serious physical or mental diseases, or have character defects that make them incompetent," says Arnold Relman, M.D., renowned former editor of the New England Journal of Medicine, who served on the Massachusetts Board of Medicine. Unfit doctors can create adverse hospital incidents that end up as media events. When they do, it can almost always be traced to inadequate peer review, says Skip Freedman, M.D., an Oregon independent peer reviewer. "You can change your oil filter now, or buy a whole new engine after your hospital is plastered across the front pages," he says.
Amendment 7 Fallout
Since Florida's Amendment 7 passed, plaintiff attorneys have deluged Florida hospitals with requests for peer review notes. West Palm Beach plaintiff attorney Theodore Babbitt says his four-lawyer firm has made at least 50 requests for notes from hospitals. Lance Block, a Tallahassee plaintiff attorney who represents FPP, has requested notes for every ongoing medical malpractice case in which he has filed suit--at least 15. And just one week after Amendment 7 passed, lawyers for the state's largest public hospital, Jackson Memorial in Miami, received a plaintiff law firm request for all adverse incident reports in Jackson's history.
"Hospitals will just have to stop providing care and just process records requests," Bill Bell, general counsel for the Florida Hospital Association (FHA), says sardonically.
The amendment has brought the press in demanding records as well. When a surprising one-third (nine) of the interventional cardiologists with privileges at Regional Medical Center Bayonet Point, a 290-bed hospital near Clearwater, had some of their privileges suspended last December, a St. Petersburg Times reporter requested their names, as well as past historic disciplinary reports about them, citing Amendment 7. But hospital attorneys and the FHA said in their brief that releasing the names of the cardiologists would violate the U.S. Constitution as well as federal and state laws that protect peer review. They also stated that Amendment 7 is too vague and are asking that the state legislature clarify it.
The "Bayonet Nine" had their interventional cardiology privileges suspended after an independent peer review. According to the Times, reviewers found that in some cases doctors had: performed angioplasties on patients whose arteries were not sufficiently clogged with plaque to warrant the procedure; propped open clogged arteries with stents of the wrong size or type; used incorrect or inadequate medicines to treat coronary artery disease; or failed to maintain complete records. Bayonet spokesperson Kurt Konover says the physicians are appealing the decision.
Bayonet's attorneys filed an injunction against the Times, as well as the state health agencies required to enforce the amendment, in order to keep the names and details confidential. In court documents, hospital attorneys asked a circuit court judge to find the amendment unconstitutional. The FHA is offering legal assistance, and a ruling is expected soon.
FHA general counsel Bell has been at the epicenter of the Amendment 7 maelstrom from the beginning. Even before Election Day, the FHA filed a request with the Circuit Court of the Eighth Judicial Circuit in Alachua County, Fla., for an injunction to delay the enactment of the amendment until hospitals received clarification on several points, such as whether requests for peer review notes could be retroactive. Eighty hospitals later joined with the FHA to contend that, without confidentiality, peer review cannot achieve its purpose to improve patient care and protect the public.
A circuit judge dismissed the case, referring the matter to individual Florida courts on a case-by-case basis. The decision ensures there will be conflicting rulings in many Florida courts, ultimately leading to a Florida Supreme Court decision. The FHA is appealing. "We would like to get it to the Supreme Court as soon as possible," Bell says. Meanwhile, existing confidentiality laws prevail until the language of the amendment can be clarified by the Florida Legislature or by Florida courts.
Another scenario would have the 2005 state Legislature session resolve the many issues surrounding the amendment. "The legislature is interested in addressing it. The courts and the Legislature could be ruling on it at the same time," Bell says. This route is precisely what trial attorneys had hoped to avoid, by designing the amendment to go directly to consumers, bypassing partisan politics.
"It appears the hospitals are trying to drag this out in hopes the Legislature will bail them out," says plaintiff attorney Block. "They are insistent in trying to get the courts to say 'no' to victims of medical malpractice, and to get the Legislature to help them."
Says Los Angeles attorney Kadzielski, "It is incalculable how much peer review activity is being lost while all the legal stuff is hammered out."
Meanwhile, a random sampling of Florida hospitals indicates that none has complied with requests for documentation. Because the language of the law is ambiguous, it could apply to peer review notes, safety reports, morbidity and mortality conference notes, etc.--any hospital report in which there is mention of an adverse incident. Hospitals maintain that any of these reports would include the names of patients or enough details about them even if their names were blacked out, that it would violate Health Insurance Portability and Accountability Act (HIPAA) regulations.
"We're not turning over documents until we know the outcome of pending litigation that will clarify the scope of the amendment," says Jody Lehman, general counsel for Baptist Health, comprising South Florida's five Miami-Dade hospitals. Warren Jones, a spokesperson for Tallahassee Memorial HealthCare, a 770-bed hospital, says, "We're not releasing those records because of ongoing legal action on the issue." And Boca Raton defense lawyer Scott Michaud, who represents a dozen South Florida hospitals, says, "There is uniform resistance to releasing records." Lehman says at least two requests are "global," asking for every adverse incident record. "It could take us years to comply. The costs would be astronomical."
Florida hospitals are refusing requests on several grounds, among them, that the amendment violates the U.S. Constitution and conflicts with existing state and federal laws. Some of these include Medicare's Peer Review Improvement Act of 1982, HIPAA, the Health Care Quality Improvement Act of 1986, and standards set by the JCAHO. In other words, if records are stripped of confidentiality by the state amendment, it could put Florida hospitals in violation of federal law.
Several Florida statutes require hospitals both to conduct peer review as a condition of licensure, and to keep disciplinary actions confidential. "Federal law as well as other provisions of the Florida Constitution severely restrict the application [of Amendment 7] which could render it useless," wrote FHA President Wayne NeSmith to association members.
Also, the amendment's wording does not make clear what records should be made available. "The amendment was written so broadly and so vaguely, it requires the Legislature to clarify--are morbidity and mortality meetings included?" Bell asks. "It could include virtually every hospital record including credentialing committees, accreditation proceedings, all history and physicals. Hospitals could end up violating individual civil rights by releasing too much information."
Another confusion is that the amendment allows "patients" access to records. This could be interpreted as any person who has an actual or future relationship with a hospital. Moreover, it is not clear whether a hospital can charge for expenses relating to locating, preparing and copying the requested records. Furthermore, there is no timeframe indicated as to how quickly hospitals must comply--in 30 days, in a year?
One especially troubling question--is the amendment retroactive, and, if so, how far back? In the case of the St. Petersburg Times, for example, its reporter requested peer review records created prior to Nov. 2, 2004, when those who conducted reviews did not know voters would allow their remarks to be publicly available. The FHA argues that the amendment cannot apply to records created prior to its enaction.
While the legal wrangling plays out, both the FHA and the Florida Medical Association continue to field dozens of panicked phone calls from risk managers as well as physicians who are now reluctant to participate in peer review.
The state hospital association advises doctors on its Web site that, although the physician notes obtained by patients probably cannot be used in a malpractice suit (federal and state laws provide immunity from liability in damages for doctors conducting peer review), they could tip them off on how to obtain the same information from another source.
For example, peer review notes might say that Nurse Ratchet observed Dr. Welby taking off his gloves during surgery and using his bare hands to operate, which led to a serious patient infection. Those notes could not be used in a medical malpractice trial, but Nurse Ratchet could be subpoenaed by a plaintiff attorney and asked about what she saw Dr. Welby do in surgery. Her testimony could be used in a trial.
In addition, "information from the other source could potentially be used to sue the physician for damages, including actions for libel, slander or interference with a business relationship," the Florida Medical Association's Web site states.
As a result, doctors statewide are vowing to pull back on peer review, putting the brakes on the process. "If the law is upheld, my committee won't be functioning, and I will drop out because we can't have open conversations," interventional cardiologist Roberts says.
Doctors at Jackson Memorial are similarly disinclined. "The administration told us to continue business as usual because peer review is mandated by the JCAHO and hospital bylaws," says Barry Gelman, a pediatric intensivist who sits on several peer review committees. "Although the hospital's legal counsel assured us we're covered, we're uncomfortable we could hurt a physician who did nothing wrong because things we say could be twisted. There is a heightened level of concern. I think there is more incentive now than before not to report."
Physician response to the amendment angers trial lawyers. "It is a sad day when the medical profession decides not to police members because they have to make [peer review] public," says Babbitt, the West Palm Beach plaintiff attorney.
At Baptist Hospital of Miami, where Roberts is a committee member, dramatic steps were taken to protect its voluntary teams. Peer review meeting minutes no longer list those in attendance. They describe essential facts with no editorial comments. Letters of inquiry to physicians whose actions are questioned are now signed in the name of the committee, not individual members.
Kentucky hospitals have tried to avoid plaintiff attorneys' attempts to obtain notes by asking the hospital's general counsel to sit in on peer review sessions. Then they may claim an attorney-client privilege exists. "That is successful sometimes," Brezosky says. "Doctors still participate, but it's understood their comments are discoverable, which guts the whole process. It's hard to be critical under those circumstances."
One FHA solution is to rewrite hospital bylaws changing the purpose of the peer review committee from "determining if the standard of care is met," to a more general statement relating to overall quality improvement.
If Florida hospitals find they no longer have an in-house quorum to conduct peer review, they can outsource to independent firms such as The Greeley Company, Mercer Human Resource Consulting and AllMed Healthcare Management. But even outside reviewers are hesitant to provide services at this juncture.
"Florida's open peer review shrinks the pool of our available doctors that would subject themselves to increased opportunities for harassment by the legal system," says Skip Freedman, M.D., of AllMed.
Review by independents is costly too, from an estimated $250 to examine a thin chart to see if an eye surgery was done correctly, to $2,500 to scrutinize a city phone book-size chart of a complex back surgery citing infection and repeat procedures. Says Daniel Fairman, M.D., a principal in the Ketchum, Idaho, outside review firm PR-ASAP, "It's expensive for a hospital but cheaper than a lawsuit."
Maureen Glabman is a writer based in Miami. Portions of this article were excerpted from her article in Florida Medical Business, Jan. 25, 2005.
This article 1st appeared in the December 2099 issue of Trustee Magazine.
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