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Understanding the current state of peer review in Florida.

I applaud the efforts of federal and state government to promote health care transparency through public reporting of certain quality of care information (e.g., AHCA's publication of hospital readmission rates, CMS' Hospital Compare and Nursing Home Compare), but confidentiality of medical staff peer review and quality improvement information has been--and is--a key catalyst for promoting the candor and honesty necessary for effective peer review. Thus, I read with great interest the article on Florida's Amendment 7 ("Riding the Red Rocket: Amendment 7 and the End to Discovery Immunity of Adverse Medical Incidents in the State of Florida," March). The author includes a thorough discussion of the case law development, but describes as "curious" the Florida Supreme Court's ruling that "only calls into question the validity of the statutory immunities, rather than declares them unconstitutional." I would like to address that question.

Hospitals, physicians, and the lawyers who work with or against them must keep in mind that, although Amendment 7 and its subsequent cases removed many discovery protections on records of adverse medical incidents, those cases did not invalidate certain protections afforded by other Florida statutes, including: physicians' immunity from damages for participation in peer review; confidentiality of certain quality reports held by the state (e.g., AHCA); and physicians' protection against compelled testimony. Those important ancillary protections to the peer review structure were not the subject of Amendment 7 and, accordingly, those statutory provisions remain in effect to promote open and honest quality of care discussions among hospitals, physicians, and other health care providers. Furthermore, because the scope of Amendment 7 is limited to records of "adverse medical incidents," it would appear peer review information is not discoverable if the care was deemed "acceptable," the patient death deemed "unpreventable," or the physician file contains behavior or other information unrelated to conduct "that caused or could have caused injury or death of a patient."

Peer review and quality improvement protections serve to maintain and improve the quality of medical services, allow physicians to police themselves without burdening the court system, protect patients, and save lives.

Participation in peer review is a difficult, albeit important, task which becomes even more so when physicians encounter deficient quality of care among one of their peers. Despite the passage of Amendment 7, hospitals can and should find ways to encourage peer review and protect physician participants. Not all protections have been lost, and it is important to be mindful of all the laws which comprise the current state of peer review in Florida.


In the article, "Riding the Red Rocket: Amendment 7 and the End to Discovery Immunity of Adverse Medical Incidents in the State of Florida," the author notes that, prior to the passage of Amendment 7, various statutes "crowned the medical profession with an almost unlimited degree of authority, not only to regulate itself but to conduct clandestine deliberations involving peer review, credentialing, investigations, quality assurance, and risk assessments, as well."

It is interesting to note that a lawyer would make such a statement when the public has frequently complained about our disciplinary proceedings which are handled only by The Florida Bar, as opposed to a state regulatory agency. In the case of a medical professional, problems are not only addressed through statutorily mandated processes within the hospital, but also are addressed through the Board of Nursing, Board of Medicine, etc.

Further, Mr. Harris suggests the amendment passed because of the public's desire to lift "a veil of secrecy" and because the medical profession had become "like the proverbial fox guarding the hen house." In fact, the advertisements in support of Amendment 7 suggested that the Constitution needed to be amended so that patients could make more informed decisions prospectively about medical care and treatment they were going to receive on an elective basis.

For example, if a patient was going to undergo an arthroscopic procedure, the patient would want to know the surgeon's success rate and the rate of infection at the hospital. Admittedly, I did not hear or see every advertisement in support of Amendment 7, but I do not recall any advertisements suggesting that the amendment was designed to allow attorneys to obtain previously unobtainable discovery.

Lastly, I wish to comment on the author's argument in support of the retroactive revocation of the statutory privileges which were enacted by the Florida Legislature and which were repeatedly approved by the courts of this state. In doing so, he cites to Buster that hospitals and physicians only had an "expectation of the continued confidentiality of such records and nothing more and that there was no vested right" to confidentiality prior to November 2, 2004.

Our evidence code contains privileges for communications with journalists, attorneys, psychotherapists, sexual assault counselors, spouses, clergy, and accountants. Is there only an "expectation" that the communications outlined in these statutes will be confidential? If so, I will certainly be more guarded the next time I speak to my lawyer, my accountant, and my wife.

NORMAN M. WAAS, Coral Gables

Joe McFadden

I want to tell you how much I enjoy the cover/lead article art by Joe McFadden each month, particularly his drawings of animals. I hope you will do an article about him in The Florida Bar Journal soon. His artistic talent and creativity are an appreciated component of the Bar Journal.


Pro Bono

Mandatory pro bono is one of those great theoretical ideas probably best suited to a more socialist society. In his March letter, Neil Chonin of the nonprofit Southern Legal Counsel suggests that pro bono should be mandatory. It is a poor idea which received a poor reception years ago and continues to be a poor idea today. That there are some who embrace free legal care is laudable for them but should and must remain an individual determination for each professional whether she or he might be an attorney, doctor, accountant, or plumber. I don't see anyone suggesting plumbers provide their time for free. If, perhaps, some of our attorney readers shrink at the suggested comparison between trades people and professionals, they should not be so quick to judge. All each of us has with which to feed our families is our time.

Mr. Chonin apparently has chosen to work for a nonprofit and may think his life choices are best, not only for him, but so too for the rest of us. I, for one, do not seem to be making the same economic living I found a tad more comfortable only a few years ago. That living permitted me to pay my children's undergraduate and then law school educations while still putting food on the table.

I might point out I have spent many, many hours on pro bono matters, even volunteering for Women Organized Against Rape for several years. What I have chosen for my disposable hours is my decision and should not be mandated by anyone or any organization, including, but not limited to my bar association.

Mr. Chonin suggests we need court intervention to solve the "lack of legal care for the poor." In my years of providing free legal care in Philadelphia, under a program called V.I.P., my experience was that many, if not most, were fraudulently portraying themselves as poor and in need of free services. This country is neither socialist nor communist premised and is based upon each of us working for our individual reward which ultimately does enhance the more global but still local economics. (Yes, capitalism.)

While it is unfortunate there are people who feel they can demand we work for their reward at our expense when their life choices have lead them into decline and poverty, it is not our responsibility and should not be foisted upon any professional or tradesman by their governing body. Do not take our hard fought economic stability to pay for others who either choose to feed off society or made poor decisions. I, like many attorneys, worked my derriere off at sometimes three simultaneous jobs to become an attorney. No one gave it to me, and I have little intention of giving my hard earned time/money because of force instead of my personal choice.

Frankly, if I am coerced to do what I have done willingly in the past, I may very well determine to do less.

LOUIS E. SLAWE, Philadelphia
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Title Annotation:Letters
Author:Lacktman, Nathaniel (Nate); Waas, Norman M.; Phillips, Jane; Slawe, Louis E.
Publication:Florida Bar Journal
Article Type:Letter to the editor
Date:May 1, 2009
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