March 7, 2008

Yesterday the Florida Supreme Court issued an opinion on two cases involving the effect of Amendment 7 on the confidentiality of peer review and medical incident reports. Amendment 7, cleverly labeled as the "Patient's Right to Know About Adverse Medical Incidents," was the trial bar's way to obtain state-sanctioned confidential peer review information for use in medical malpractice lawsuits. To lessen the effect of this amendment, legislation was enacted providing that the Amendment was not applicable to documents created prior to the Amendment's passage. This legislation also placed restrictions on the documents that could be obtained under this Amendment and who could obtain them. Finally, the legislation made it clear that the Amendment had no effect on existing privilege statutes.

In a decision that Justice Wells in dissent described as "contrary to the law and fundamental fairness," a sharply divided Supreme Court ruled that Amendment 7 is self-executing and retroactive, and its provisions apply to records existing prior to its passage. In addition, the Supreme Court ruled that several of the key provisions of the implementing legislation are unconstitutional.

The Court's ruling effectively ignores over twenty years of statutory protection for peer review records and opens these documents up to access by the public, clearly in contravention of the expectations of the physicians who participated in the peer review process. While hospitals will have to continue to provide peer review as mandated by law and report adverse incidents, this opinion will likely have disastrous consequences on the effectiveness of such review.

The FMA has studied the Court's opinion in depth and is in consultation with the Florida Hospital Association to determine what avenues, if any, are open to address this unfortunate ruling. The FMA encourages each physician who participates in hospital peer review to consult with their medical staff attorney as well as the hospital administration to determine how best to proceed with peer review given the new legal landscape produced by the Supreme Court's decision.