Florida high court frees some hospital records from peer review shield.

The Florida Supreme Court has ruled that a medical malpractice plaintiff has the right to see hospital documents that explain its doctors' hospital privileges, even though the documents maybe the products of peer review proceedings.

The unanimous decision reverses a history of lower court decisions that deferred to state confidentiality laws protecting peer review documents from discovery, finding that "the availability of such information would appear fundamental and essential to any patient's decision to consent to a medical procedure to be performed by a physician in the hospital." (Brandon Regl. Hosp. v. Murray, 2007WL 1362903 (Fla. May 10, 2007).)

"The ruling has created a crack in what was otherwise a difficult shield, the peer review process," said Ed Krieger, a Tampa lawyer who was cocounsel for the plaintiffs. "What the court found is, not everything that passes through the peer review process is confidential. The distinction is between hospital records and peer review records."

Under Florida law, all documents related to hospitals' peer review proceedings fall under the confidentiality statute and cannot be disclosed during civil litigation. In this case, the documents in question--called delineated credential lists, or DCLs--are partially based on peer review proceedings; doctors must be approved by the peer review committee before they can obtain privileges, and the DCL explains which privileges they've been granted. Because of this connection to peer review, Florida courts have traditionally extended the statute's protections to DCLs.

"The challenge," Krieger noted, "is not to question the confidentiality statute--which is good--but to question whether the statute has been abused, which I think it has, for several years." In 2000, Maria Murray delivered a baby at University Community Hospital in Tampa. During the course of delivery, she suffered a lacerated perineum. Maria then became a patient of Wayne Blocker, who performed surgery on her to repair a rectovaginal fistula at a different facility, Brandon Regional Hospital.

In 2003, the Murrays filed a lawsuit against Blocker, claiming that he botched the procedure, leaving Maria permanently injured; that he performed surgery for which he was not qualified and did not have hospital privileges; and that he failed to obtain informed consent. The Murrays also sued Brandon Regional, claiming that the hospital had failed in its duty to confirm that Blocker had the qualifications and privileges necessary to perform the surgery, and for negligent selection, credentialing, and retention of Blocker. As part of discovery, they requested the DCLs.

Brandon Regional refused to disclose the documents, asserting that under Florida law, peer review records are strictly confidential and that the DCLs were products of the peer review committee. The hospital moved for a protective order under the state confidentiality statute, but its petition was denied by both the trial and appeals courts--a surprising departure from historical trends.

Indeed, the state supreme court agreed to hear the case "based on the second district's decision being in express and direct conflict with other district court decisions, including those cited in the opinion," as Supreme Court Justice Harry Anstead wrote for the court.

The supreme court acknowledged that its "interpretation of the history of these statutes thus far has been to err on the side of protecting the confidentiality of the peer review process" and that "district court case law in Florida has uniformly denied discovery of documents created by a peer review committee in civil litigation."

But in this case, Anstead wrote, "the hospital acknowledges, and we agree, that there is nothing in the legislative scheme for peer review that would prevent a patient from securing such information from a hospital that has granted a physician privileges within the hospital, even though a portion of the process for determining the privileges to be granted may involve a peer review committee."

The court was careful to reaffirm that internal documents produced by peer review committees were still shielded from discovery and that this ruling did not weaken that shield.

"The first part of the decision confirms the confidentiality of peer reviewed records," said Krieger. "Peer review is still alive and well, and well protected, in Florida. But the second part says that certain hospital records cannot be kept confidential--that the patient has every right to know, is this surgeon qualified to do this procedure?"

Krieger said the impact of the ruling will be to broaden plaintiffs' opportunities to obtain thorough discovery in medical negligence cases.

"Before this," he said, "the defense could throw 'peer review, peer review, peer review' at every document request. Now, a trial court can determine whether certain documents can be granted. At least, we have the opportunity to knock on the door and be heard."

--CARMEL SILEO