ASHRM head: High court action could be real threat

The recent action by the U.S. Supreme Court regarding confidentiality of peer review records "could have some pretty far-reaching, negative effects," says Grena Porto, RN, ARM, DFASHRM. Porto is director of clinical risk management and loss prevention services at VHA Inc. in Berwyn, PA, and president of the American Society for Healthcare Risk Management.

She says the order by the federal district court requiring the hospital to turn over peer review records and the Supreme Court’s refusal to hear the case are further threats to a system that has served the health care community well for years.

"This appears to be part of a continuing trend to remove the privileges afforded the peer review process," Porto tells Healthcare Risk Management. "There has been a real gradual and continual erosion of the confidentiality statutes. A concern for risk managers is that it will have a negative effect on any cases already in the works, cases in which you thought peer review records were not an issue."

Some legal experts say the threat is restricted only to certain cases in federal court, but Porto says she is not reassured. Judges tend to look to each other for precedence, and at least informally, the federal decision could affect state courts as well, she says. "I think it’s going to have a lot of impact in our courts. I’m not sure the courts make the distinction all the time that this case was in federal court. An Oklahoma state judge may look at that federal decision and figure the feds know what they’re doing, so he applies that reasoning in his court instead of following a previous state court decision."

Porto also points out that plaintiffs’ attorneys already were bringing more cases into federal court as a result of broad national health care networks in which the plaintiff patient often resides in a state other than the network’s home state. That causes citizenship problems that legitimately take the case to federal court. Now that the federal courts have opened the door for peer review records, Porto says she expects attorneys to push even harder for federal jurisdiction.

Agreeing with other observers, Porto says the worst effect of the case could be discouraging doctors from participating in the peer review process.

"I don’t think there will be a mass revolt, but some of the more well-informed physicians may see it as a threat and pull back. For others, it may take some personal experience with their own malpractice case or being called as a witness," she says. "A lot of physicians will hear about it only when they ask the risk manager if this information really is protected, and we have to say, well, maybe not.’"