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Nearly four years after Florida voters approved a constitutional amendment known as the “Patients’ Right to Know Amendment,” Florida healthcare providers may actually have to do what it says.

Doctors and other providers will have to cough up documents related to peer reviews at healthcare facilities, which typically take place under secrecy. And, the court ruled, they have to reveal information that was gathered even before the amendment was passed, but just how far back was unspecified.

The ruling does make clear, however, that patients have the right to know more about a doctor’s past medical errors.

By a 4-3 vote, the court upheld Amendment 7, passed by 81 percent of voters in November 2004. The court in its ruling threw out a state law passed by legislators in 2005 that weakened the amendment.

Hospitals and doctor groups, as they have argued all along, say that opening peer reviews will actually hurt patient safety because peer reviews are a way to improve medical practice in a confidential setting.

“It’s certainly going to have an effect,” said Jeff Scott, director of legislative affairs for the Florida Medical Association. “The hospitals are going to be less likely to put something in writing. And physicians will be less likely to serve on peer review committees.”

The peer review process will suffer as a whole, Scott said. “The whole concept of peer review, why it has worked, is because it’s a confidential forum where doctors candidly discuss how they can do things better,” he said. “When you open this up and make it accessible to a plaintiff’s lawyers it becomes not about the patients’ right to know, but the lawyers right to know.”

Not so, said Frank Petosa, president of the Florida Justice Association, which strongly supports Amendment 7 and argued in favor of the recent Supreme Court ruling.

“The medical profession seems to like focusing on the lawyers instead of looking at the real cause, which are medical errors,” Petosa said. “We truly believe that since Amendment 7 passed, it sent a pretty strong message to the medical industry that citizens are very concerned about the alarming rate that medical errors occur. They want to have access to information. And they should be able to make a request to a facility to ask for information about adverse medical incidents.”

Up until now, the intent of the amendment had been followed in only a spattering of cases. That’s because its legal footing was tied up in court where hospitals argued against giving up information. Out of roughly 35 circuit court cases with judges ruling in both directions, two cases involving Florida Hospital Waterman and Notami Hospital of Florida made it to the Florida Supreme Court.

What about so-called “sham” peer reviews? These are widely documented cases where doctors allege being hauled before a peer review committee as retaliation for speaking out about patient safety or questioning a prominent colleague.

Won’t peer review transparency possibly put an end to this?

“I don’t see that this necessarily will stop that to whatever extent it occurs,” said the FMA’s Scott. “It may have a deterrent effect from hospitals to do that, but the negative effects far outweigh whatever benefits you might get from that.”

For Robert Harvey, executive director of the Florida Chapter of the American College of Surgeons, protecting peer review comes down to whether people will speak freely.

“It (Amendment 7) has caused a tremendous problem for us,” Harvey said. “When peer reviews are done, they are done to improve the standard of care. When people are nervous or afraid to speak freely, it will hurt the situation. It’s probably going to have to be addressed in the legislature.”

Hospital administrators are likewise upset. “We’re disappointed in the courts ruling,” said Bill Bell general counsel of the Florida Hospital Association, which filed an amicus brief in the Supreme Court case.

“Though there has been a motion of reconsideration filed, we certainly think there are legitimate reasons to come to a different decision on the issue of looking back retroactively,” Bell said. “The court could help to clarify that Amendment 7 has no impact on attorney-client privilege and attorney-client work product. It has no impact on testimony and discussions that surround the creation of the records.”

What then is the fate of a hospital’s physician review process?

“Certainly peer review will continue,” Bell said. “People will just be more careful about what they write down.”



May 2008

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