By J.A. (Tony) Patterson, Jr., Fulbright & Jaworski, L.L.P., Dallas, TX
The Planning Committee for the Section’s 2006 Emerging Issues Conference (February 22-24, 2006 — The Hilton El Conquistador, Tucson, Arizona) is already on its way to putting together the program and the meeting arrangements. While reflecting on emerging issues in healthcare law, I have become more and more concerned about what I will call the “peer review wars.” Across the country, the cry has been going out for ensuring that high quality care is provided to patients by hospitals, physicians and other healthcare professionals. National efforts to support the reduction of preventable medical errors through electronic medical records and establishing payment differentials for quality of care as well as the efforts by some states (including Texas) to publish on state medical board websites “physician report cards” are directed at the quality goal. Yet at the heart of quality of care is the self-policing of the healthcare profession through peer review. In 1986, the Health Care Quality Improvement Act (HCQIA) was passed by Congress to put a protective mantle over peer review activities properly conducted, with reporting requirements to ensure that sub-par performance and actions taken against physicians would be reported and available on a national basis. Despite the angst over the impact that the National Practitioner Databank would have on physicians, the intent of the Act appears to have been carried out well.
Recent developments, however, evidence a growing threat to the progress that has been made. Let me cite two prime examples of threats to the continuing effectiveness of peer review. The first is the decision known as the “Poliner case” out of a federal district court in Dallas, Texas, where a jury awarded a cardiologist claiming abuse of the peer review process $366 million dollars from the hospital and several of the physicians involved in the matter. The second is a new section to the Florida Constitution that is entitled “Patients’ Right to Know About Adverse Medical Incidents.” While subject to federal privacy restrictions, the section permits patients access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident. The phrase “adverse medical incident” includes “incidents required by state or federal law to be reported in a governmental agency or body and incidents that are reported to or reviewed by any healthcare facility peer review, risk management, quality assurance, credentials or similar committee or any representatives of such committees.” As you can imagine, a fire-storm has arisen across Florida about the effect this will have on peer review.
I am not passing judgment on these two examples, nor others that exist. The requirements for a fair peer review process in HCQIA and the public’s access to information on providers’ adverse experiences are as legitimate as the need for peer review itself. My concern is that the “feeding frenzy” that is occurring over the peer review process and the information developed in that process may destroy the very thing the process was set up to achieve. Without effective peer review, calls for quality health care will be mere “voices crying in the wilderness.” I encourage all of us to become educated on the issue, consider fully and fairly the legitimate concerns on all sides of the issue, and participate in what will be a growing national debate on preserving peer review as a central element in ensuring that the healthcare services available to the American public is of the highest quality attainable. A number of your Section’s Interest Groups will be considering the issue I have addressed from their group’s perspectives. One way to play a role in finding ways to resolve this issue is to participate in these Interest Group activities.Best wishes.