Jump to Navigation

Contact Our Firm

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Election Aftermath, Part 2: A Closer Look at Amendment 7

This article is the second in a two-part series on the medical malpractice amendments approved by voters in November. It examines the post-election impact of Amendment 7 and what it means for physicians. Also known as the "peer review" amendment, 7 states:

"Current Florida law restricts information available to patients related to investigation of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities or providers' adverse medical incidents, including those that could cause injury or death. Provides that patients' identities should not be disclosed."

Peer review has long been considered confidential and privileged, qualities key to its effectiveness. Amendment 7 opens a Pandora's Box, potentially exposing peer review and adverse incident reports and documentation that were previously protected under Chapter 395, Florida Statutes. Citing that this Amendment is not self-executing and requires legislative enactment, the Florida Hospital Association ("FHA") immediately filed a court challenge to it in the Circuit Court for Leon County. This Court granted the Motion to Dismiss filed by the opponents to the lawsuit. However, the FHA has appealed the Court's decision.

One of the greatest questions surrounding Amendment 7 involves the discoverability versus admissibility of peer review information. While the Amendment will allow patients to "discover" or obtain peer review information, this information will most likely not be admissible as evidence in a civil lawsuit or other judicial proceeding. A number of other issues surround the Amendment and will require clarification prior to any sort of implementation, including:

  • Can it be applied retroactively or only to incidents that occurred after November 2, 2004?
  • Specifically, what information/records must be released and how does this affect current patient confidentiality laws and concerns?
  • How does the Amendment define peer review? Does it also entail routine quality assurance, utilization review and credentialing activities?
  • Does the federal Healthcare Quality Improvement Act of 1986, which dictates that effective peer review must be confidential, pre-empt Amendment 7?

Rare is the physician who truly likes peer review, and many may even view the passage of this Amendment and its lingering implementation as an opportunity to no longer participate in the process. However, peer review is a necessary evil designed to ensure the quality and safety of our healthcare system. If physicians don't review themselves, who else is qualified to do it? The bottom line: peer review is not going away and if physicians do not handle it themselves, someone will step in and do it for them.

That said, physicians should proceed cautiously with peer review as the courts resolve the issues surrounding Amendment 7. Physicians should carefully evaluate each situation and seek qualified healthcare counsel to help them avoid and wade through the potential land mines and pitfalls lurking along the way. Common concerns that many physicians have already voiced include whether or not verbal peer review is an alternative, and whether opening up peer review under Amendment 7 affects immunity. It is important to note that Amendment 7 will not affect the immunity to which physicians are entitled under Chapter 395, Florida Statutes, and federal law when they conduct good faith peer review. Additionally, if a physician was somehow sued for negligent credentialing, immunity should not be affected unless there was a known risk that the physician failed to discover or ignored, and with all of the credentialing resources currently available, lack of discovery is rare.

While Amendment 7 remains a threat to the practice of medicine, it also provides an opportunity for the medical community to engage in a dialogue, helping to review and redefine how the peer review process works while defending its core value of confidentiality. As this issue moves through the courts, physicians should continue to monitor the progress and stay informed through the Florida Hospital Association, Florida Medical Association and local medical societies. All of these organizations are working hard to ensure this issue remains a priority and that implementation of this Amendment, should it occur in some form, does not adversely affect Florida physicians.

Recent News

1/24/2013 Practice Area Focus: Medical Malpractice Defense and Personal Counsel The Drawn Out Process of the Medical Lawsuit

Click here to join our email list for articles!
Local: 407-332-6353 · Toll Free: 800-571-5208

Privacy Policy | Law Firm Marketing by FindLaw, a Thomson Reuters business.