Reader take: Peer review as potential courtroom evidence

The following is a reader take by an anonymous physician.

In November of 2004, the state of Florida adopted an amendment to its state constitution making peer review records available to patients and their attorneys in legal proceedings. On March 6th of this year, the Florida Supreme Court ruled that this privilege applied retroactively to records of conversations that were made before that law existed, when physicians were under the impression that their words would never be heard or read by anyone outside of those proceedings.

The court proclaimed that the intention of the amendment was to “do away with the legislative restrictions on a Florida patient’s access to a medical provider’s ‘history of acts, neglects or defaults.’ The court further concluded that, “[m]edical providers have never been granted a substantive vested right in the secrecy of information contained in the limited medical records in question.” The Florida verdict seems to be limited to matters concerning adverse medical incidents. For now.

I can hardly imagine a more chilling development for physicians coming from an American court. The implications are profound. I don’t live or work in Florida, but it isn’t hard to imagine this happening soon in my home state or in any other. It could be this year, next year or ten years from now. Who knows? Nor is there any reason to think that such legislation would limit itself to matters of medical misadventures.

Impaired physicians better think long and hard about what they confide to their hospital peer review committees.

This means that it may never again be safe again to speak frankly in a peer review setting, or any other medical investigatory setting for that matter. No, it means that it is not safe to speak frankly in any venue because ones words may end up in the hands of a plaintiff’s attorney some day no matter what perceived legal safeguards are in place. It means that all American physicians in all contexts better think long and hard about frankly discussing or admitting to any actual or perceived problem with their performance as physicians. Or that’s what it means to me.

Some will say that I am over generalizing. Perhaps. But how can any of us know how far this trend will go? Personally, I don’t feel very treasured by my country’s government any more, the one that dangles the sword of Damocles over my neck every couple of years with threatened Medicare pay cuts, and the one that in the 1990s turned the RICO statutes on us for innocent medical billing errors. Throw in CLIA, EMTALA and Stark, and far from a warm, fuzzy feeling, you can actually start to feel a little unloved.

Every American physician needs to decide for him or herself how to treat future (and past) peer review proceedings and the records generated from them ““ safe harbor for frank discussion, or potential courtroom evidence.

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