Florida Supreme Court may look at peer review confidentiality

Conflicting lower court rulings resurrect a battle over a measure that doctors say could chill this essential quality-control process.

By Amy Lynn Sorrel, AMNews staff. June 12, 2006.

Two Florida appeals courts have ruled that a hotly debated constitutional amendment lifts the cloak of confidentiality in peer review proceedings. But disagreement over one aspect of the measure, which gives patients access to records related to medical errors, could send the matter to the state Supreme Court.

Both appeals courts determined that Amendment 7, passed by voters in a November 2004 ballot initiative, preempts earlier statutes that protect peer review, credentialing and risk management documents from being used in medical liability lawsuits. As a constitutional amendment, the measure also overrides legislation passed in June 2005 to preserve the confidentiality of records dealing with "adverse" medical incidents, judges found.

But the two courts conflicted over whether peer review and other confidential documents created before the amendment passed should be opened retroactively. Judges from both courts asked the Florida Supreme Court to decide the matter.

If the high court takes up the cases, physicians hope to open the larger question of whether such documents should be public at all.

"We don't believe the amendment had anything to do with removing the privileges that had been in Florida law for years protecting the confidentiality of peer review," said John M. Knight, general counsel of the Florida Medical Assn., which filed a friend-of-the-court brief in the case before the 1st District Court of Appeal.

Regardless of whether disclosure is retroactive, open access would have a chilling effect on peer review, the FMA argues. The group plans to file a brief urging the high court to overturn both appeals court rulings, Knight explained.