Protecting non-physician peer review

Check your state laws: Only doctors may have protection

Florida has joined a rarified group of states that provide no protection for any documents produced as part of peer review for non-physician providers. Florida joined Kentucky and a few other states as one where healthcare professionals who try to learn from mistakes are at risk of any written materials from peer review being subject to discovery by lawyers during litigation.

Amendment 7, which made all documents related to provider performance discoverable, has been through just about all the litigation it can be regarding its constitutionality and according to Vanessa Reynolds, of counsel at Broad and Cassel in Ft. Lauderdale, FL, is likely to stand as is for the foreseeable future.

The history of Amendment 7 goes back to 2004, when two amendments to the constitution were put before Florida's voters — one that would allow information on adverse events to be available to the public, and one limiting the compensation that trial lawyers could collect. The thought was that if the compensation was minimized, there would be less litigation, and thus the discoverability of adverse events from peer review documents wouldn't matter. Appeals on the first measure led to lawyers and clients being able to waive the limit on fees, thus effectively subverting the measure. Amendment 7, though? It stands, and after a lot of litigation, looks as though it will continue to do so. Marketed as the "Patients' Right To Know" amendment, chances of revoking the amendment would be slim even if there wasn't a wider move afoot toward transparency and making more data available to patients, she adds.

"We stand nearly alone in the U.S. in having no peer review privilege," Reynolds says of Florida. "Only attorney work product is privileged, and everything that hospitals have tried to protect documents they generate has been struck down by the courts." Documents that reflect the impression of an attorney preparing a case for anticipated or actual litigation are safe, she adds. "The danger is that you turn peer review into a pre-litigation process, when that isn't the purpose of it."

Hospitals have tried limiting the kinds of documents they generate — producing enough to review the quality of work done, but not so much that they reveal potentially damaging information. "It's an extremely fine line," says Reynolds. "And you will find as many different opinions about what that line looks like as there are lawyers and healthcare providers."

Other states have other rules. In Illinois, the Medical Studies Act allows protection for any provider depending on the activity involved, says Mike Callahan, a partner at Katten Muchin Rosenman in Chicago. "It applies to data, reports, analyses, meetings, and materials when it relates to reducing morbidity and mortality and improving patient care," Callahan says. "By its very definition, it isn't limited to only physicians."

The glitch in Illinois and states like it is that if a discussion takes place between a nurse as an employee and someone in human resources as the employer, that isn't protected. If you want a discussion to remain confidential, it has to be within the confines of the statute, he says. "It doesn't mean you can't have conversations in the realm of HR, but you have to know that what you produce from those discussions is at risk. Hospitals forget that these discussions between employer and employee may not be captured under state confidentiality rules."

Callahan says Illinois may have more protections than many states for the kinds of providers protected. But it also has fewer in that it only applies to hospitals and managed care entities, not nursing homes, physician or other provider groups.

Nationally, the 2005 Patient Protection and Quality Improvement Act allows for protections in groups that are part of patient safety organizations (PSOs). "The protections under the act are that if you contract with a PSO, every licensed provider in your hospital is protected," he says.

Even those rules are still being figured out, though. Callahan is working on a case involving Walgreens, which set up a PSO in 2009. The company does a lot of internal tracking of outcomes and medical errors, and collects the data within its patient safety evaluation system. The company was subpoenaed in 2010 by the Illinois Department of Financial and Professional Regulation, which covers licensing of physicians, nurses and other providers. Walgreens was asked to turn over some medication error incident report data related to three pharmacists. Walgreens argued that pursuant to the act, the records were not subject to discovery. The state sued, Walgreens countersued to have the action dismissed and the company won. It is now before the appellate courts.

In California, both those who conduct reviews and those who are being reviewed in peer review have legal protection from discovery, says Mark A. Kadzielski, a partner at Fulbright & Jaworski in Los Angeles. However, this only applies to those who are legally required to be part of a peer review process. Nurses, unless they are advanced practice nurses who have been granted privileges to practice at the hospital, are not protected because they are not required to be part of a peer review system. "In that case, it's a human resources function to review the work," Kadzielski says. And just like in Illinois, what happens in HR is discoverable.

In Texas, however, there is a very robust nursing peer review process that is required under the Texas occupation code. Law there protects the work of those peer review sessions from liability and discoverability, says Kadzielski.

"My mantra is that you have to have memorized your state statute and the case law surrounding it," Callahan says. His page on the company website (http://www.kattenlaw.com/callahan/) has a variety of links, articles, and presentations that can help those in various states understand the various rules better.

"No one will understand the scope of protections unless you get risk managers, quality directors, the in-house attorney and administration all sitting at the table and going over it," he says. "Most risk managers in this state think most of what they generate isn't protected. A year ago, when I gave a presentation about PSOs, they didn't know that they offer protection, and they should have."

The Agency for Healthcare Research and Quality (AHRQ) has a PSO website (http://www.pso.ahrq.gov/) that provides a wealth of information on the topic, Callahan adds.

Ultimately, Reynolds believes that if you want peer review to be meaningful, "it has to leave you exposed to litigation." That doesn't mean that a hospital should leave it all hanging out. Rather, it means they should continue to perform peer review in a sensible manner that leads to better care and fewer errors. "Do everything you did before, but think about the documents you generate," Reynolds says. "Everyone should do that anyway."

For more information on this topic, contact: