Peer Review Confidentiality in Florida: Does it Exist?

Monday, November 9, 2015
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The confidentiality of peer review documents in Florida has been very questionable since a state constitutional amendment was passed in 2004.  Amendment 7, found in Section 25, Article X of the Florida Constitution, restricts Section 395.0193(7), Florida Statutes, which originally established peer review confidentiality.  To read the full law in Section 395.0193(7), click here.  However, Section 25, Article X (better known as "Amendment 7"), acknowledges a "patients' right to know" exclusively in reference to "adverse medical incidents."  This includes allowing patients access to incident reports, occurrence screens, root cause analysis documents and actions taken against health care providers. 


Amendment 7 at a Glance.


For purposes of the amendment, "adverse medical incidents" have been defined as "medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient..."  Section 25, Article X, Florida Constitution.  

The scope of discovery is further limited to current patients, potential patients or former patients of the medical facility as defined in the law.  Therefore, the disclosure is not open to the general public.  

And finally, Florida courts are careful to apply this patient access right in conjunction with existing statutory and common law regarding peer review confidentiality.  

To read the full law in Section 25, Article X, Florida Constitution, click here


The Importance of Maintaining Peer Review Confidentiality.
 


The National Institutes of Health has recognized the importance of peer review confidentiality even in its own practice as an essential component in the peer review process.  It has maintained that confidentiality is imperative for candid exchange of information, opinions and evaluations as well as in protecting intellectual property, financial information and other privileged information.  It is supported by law that peer review is crucial in the establishment and improvement of patient safety and overall quality of health care.  

With that being said, peer review actions not involving adverse medical incidents remain unaffected by Amendment 7.  Additionally, the patient's right of access does not extend to the identity of those involved in the incident nor is the testimonial immunity of participants infringed upon.  Furthermore, reports of outside reviewers have previously been determined inadmissable where courts found that the "records [were not] made or received in the course of business...," quoting the applicable law.  

Notwithstanding ongoing obscurity and debate surrounding Amendment 7, peer review confidentiality does exist in Florida, and health care facilities and providers are still appropriated certain protections even where the amendment does apply. 


Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.


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To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Sources:


Callahan, Michael and Lamb, Bruce (contributing comment).  "NPDB Report for Withdrawal While Under Investigation."  Medical Staff, Credentialing, and Peer Review: 4 Nov. 2015.  E-mail.  6 Nov. 2015.

NIH: National Institutes of Health.  "Peer Review Process."  Grants and Funding.  Office of Extramural Research: 16 June 2015.  Web.. 6 Nov. 2015.

Section 25, Article X, Florida Constitution.

Section 395.0193(7), Florida Statutes (2015).


About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida area.  www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.



Keywords:
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11/9/2015

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