The U.S. Supreme Court last month cleared the way for a California attorney to gain access to confidential medical peer review records, a move some fear could impede candid peer review.
The closely watched case pitted the California medical community against trial lawyers.
"Now there is a cloud on how private peer review conversations really are," says Charles Bond, the San Francisco attorney who argued before the Supreme Court that peer review should remain confidential.
Most hospitals have peer review committees, which convene to discuss everything from routine procedural matters to discipline of physicians. Laws in all 50 states protect the confidentiality of these sessions.
The Supreme Court action involves the case of Cody Burrows, an infant treated in February 1996 at tiny Redbud Community Hospital in Clearlake, Calif. Burrows, who had no health insurance, was treated in the emergency room for an ear infection by Wolfgang Schug, M.D.
Burrows' parents brought him back to the emergency room a few days later with a high fever. After attempting to treat the baby there, Schug eventually suggested the parents take him to Santa Rosa (Calif.) Community Hospital, a larger facility with more pediatric services an hour away. Schug did not call for an ambulance because he believed the parents could transfer the baby to the hospital more quickly. The baby suffered a cardiac arrest in the car and died.
After the incident, the peer review committee at Redbud met with Schug to evaluate his care of Burrows.
Later in 1996 Schug was charged with second-degree murder in state court, but the case was thrown out before the defense even presented its argument.
Also that year, in federal district court in San Francisco, Burrows' parents charged Schug and the hospital with medical malpractice and violation of the federal Emergency Medical Treatment and Active Labor Act. EMTALA is intended to prevent "patient dumping," or transferring uninsured patients to other emergency departments.
Schug's attorneys say bringing EMTALA into the mix was simply a way to circumvent state laws that protect peer review records.
But Richard Massa, the Lakeport, Calif., attorney representing Burrows' parents, says the infant received such poor treatment at Redbud's emergency department that it was a clear violation of EMTALA.
During discovery, the plaintiffs requested Redbud's peer review records. Massa says his discovery process repeatedly was thwarted, with the hospital holding up peer review as an excuse not to provide records or give depositions. After the hospital refused, first the federal judge in San Francisco and then the 9th Circuit Court of Appeals ruled that the peer review records were discoverable.
Schug appealed to the Supreme Court, bolstered by amicus briefs from the American College of Emergency Physicians, the American Medical Association, the California Academy of Family Physicians, the California Hospital Association and the California Medical Association.
On June 7, the Supreme Court refused to intervene in the case, thereby allowing it to proceed. That's expected to happen sometime this fall.
"Peer review is the foundation of quality assurance for our entire medical system. This is what I'm afraid neither the plaintiffs' attorney or the court fully appreciated," Bond says. "How else are we going to monitor the quality of care, except by upholding the tradition of doctors having constructive exchange? Part of that has to be a frank assessment, including self-assessment by the doctors involved."
Susan Hogeland, executive director of the California Academy of Family Physicians, thinks the current peer review system is effective because physicians know it is confidential. "I think that every hospital has a pretty reasonable system of peer review set up that relies on being able to discipline physicians and monitor them so they can prevent problems from happening," Hogeland says.
Massa disagrees, and now, as a result of the Supreme Court's action, will have full access to all Schug's peer review records.
"My opinion is that peer review, the theory, is good, but the practice is not good. I think it's abused," Massa says. "It's used basically to protect the hospitals and insurance companies (that provide malpractice insurance to providers)."