IMPACT OF BRANDON REGIONAL HOSPITAL DECISION ON DISCOVERY OF PEER REVIEW RECORDS

With one opinion, on May 10, 2007, the Supreme Court of Florida furthered two seemingly incongruent policy considerations lying at the heart of Florida's health care system. In Brandon Regional Hospital v. Murray, the Supreme Court of Florida rendered a decision which simultaneously (1.) permitted discovery of a hospital's decision regarding a physician's privileges and (2.) reinforced the statutory provisions protecting peer review records. The first policy centers on the notion that access to medical privileges granted by a hospital to a physician is a fundamental and essential part of any patient's decision to consent to treatment. The second policy concerns the Legislature's goal of encouraging self regulation within the medical profession by protecting the confidentiality of peer review proceedings, in order to control Florida's escalating health care costs.

The decision addresses the perpetual tug-of-war faced by the health care system in balancing a patient's 'right to know' with a hospital's need to preserve the integrity of its internal processes. The peer review process is a state mandated mechanism through which hospital personnel and physicians engage in open dialogue in order to evaluate potentially adverse events or credentialing matters without utilizing costly administrative processes. The efficiency and effectiveness of the peer review process requires a forum fostering open and frank discussion. Understanding the importance of guaranteed confidentiality in such a process, the Florida Legislature drafted 395.0193, Florida Statutes, to expressly protect the investigations and recommendations of peer review proceedings from discovery in medical malpractice claims. However, those provisions do not explicitly extend the same protection to documents considered hospital records, rather than peer review records.

Through its decision, the Florida Supreme Court interpreted 395.0193 by underscoring the importance of maintaining the integrity of the peer review process by protecting its records from discovery, but distinguished hospital decision records as serving a significantly different function in the health care system. As opposed to the sensitive nature of peer review records, including the committee's discussions and recommendations, the ensuing hospital records contain only the hospital's decision regarding whether to grant or deny certain practice privileges to a physician. While the hospital's credentialing decisions may be based wholly or in part on the findings of the peer review committee, its decision records do not contain information directly obtained from peer review proceedings.

Florida's Supreme Court decided that records of peer review proceedings have a privilege from discovery, but the privilege is limited to exclude hospital decision records from its protection. The decision stems from the principle that patients have a substantial interest in knowing which practice privileges have been granted to a health care professional before consenting to treatment by that individual. By distinguishing hospital decision records from peer review records, a hospital can serve the interests of its patients without compromising the integrity of the peer review process itself.

While 395.0193 continues to protect peer review records, it is imperative that hospital clients be notified that the recent decision in Brandon Regional Hospital limits the scope of that protection to exclude hospital decision records. Hospitals should be made cognizant of the fact that files containing the hospital's decisions regarding practice privileges granted to a physician will be subject to discovery in medical malpractice actions, although peer review recommendations may have influenced those decisions.