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The enactment of Business and Professions Code section 809.08 (AB 655, 2011) was certainly one of the most significant developments in peer review law in the past year.  This new law imposes an affirmative obligation to share peer review information between peer review bodies when certain conditions are met.  Prior to 2012, sharing of information was completely discretionary; and peer review bodies could refuse to do so when faced with concerns regarding confidentiality and liability exposure.  Now, beginning January 1, 2012, a peer review body must respond to the request of another peer review body and produce relevant peer review information about a physician who was subject to peer review for a medical disciplinary cause or reason (when the conditions described below are met). 

But when is this obligation triggered?  After a formal action has been taken? Following initiation of a formal investigation? Or somewhere in between?  Does “medical disciplinary cause or reason” imply that conclusions have been reached? The statutory language is ambiguous and creates uncertainty as to when the disclosure obligation is triggered.  A reasonable interpretation is that the obligation arises after a formal disciplinary action which is reportable under Business and Professions Code section 805 has been imposed either summarily or following the physician’s exhaustion or waiver of hearing and appeal rights.  This interpretation serves the purpose of the law by facilitating disclosure while at the same time being fair to the physician.

The obligation to disclose peer review information arises if the requesting peer review body does the following:

• Pays reasonable processing fees;
• Signs a mutually agreeable information sharing agreement (upon request);
• Indemnifies the responding peer review body against improper release/disclosure of information;
• Maintains the confidentiality of the information received;
• Agrees to use the information only for peer review purposes; and
• Provides a release signed by the physician which covers the peer review body, its members, and the health care entity (the physician can be required to sign the release).

If these conditions are satisfied, the responding peer review body has the option to provide either (1) a written summary of relevant peer review information or (2) the relevant peer review record. This record and information includes allegations and findings, explanatory or exculpatory information submitted by the physician, any conclusions made, any actions taken, and the reasons for those actions.  Importantly, the information shall not identify any person except the physician.  In order to comply with the confidentiality obligations imposed by this new statute, every page of any document released must first be redacted to remove the identity of any person except the involved physician.  Medical records and other protected health information should not be disclosed.

The new law does provide certain protections to the responding peer review body as well as the physician.  The responding peer review body acting in good faith is given protection against civil and criminal liability for providing information to the requesting peer review body.  The requesting peer review body must make this peer review information available to the physician in the course of a fair hearing being conducted pursuant to Business and Professions Code section 809.2.

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I recently had the pleasure of hearing Atul Gawande, M.D. speak about his views on health care reform, including his simple but profound message that the yeoman’s share of healthcare reform work needs to be done at the community level, rather than at the national or corporate level. I have also recently been interviewing physicians, nurses and technicians who are witnesses in a peer review hearing about the quality of services being provided by one of their colleagues.

Because these physicians’ compensation amounts are determined, to some degree, by the physician’s ability to cut costs, rather than the more traditional fee-for-service model, there is little concern that the physician who is the subject of the peer review matter can allege competition or “turf” battles as a cause of witness bias. Further, to Dr. Gawande’s point, it is clear that this “community” of interventional radiologists, vascular surgeons, neurosurgeons and cardiologists, does a terrific job of deciding amongst them who can provide the most effective and economical care, in large part because they do not compete for those dollars.

This struck me as another example to illustrate Dr. Gawande’s conclusion that local communities and physicians are the ones to determine cost control and healthcare improvement, as he discusses in a recent New Yorker article.

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How many of us recently read this or a similar headline: “Nine California hospitals fined for medical errors,” Los Angeles Times, May 21, 2010 and immediately searched the article to see which hospitals were involved? You may even be tempted to do it now to refresh your memory on the list of facilities included in the press release issued last month by the California Department of Public Health. The headlines are attention-grabbing for those who work in hospitals as well as the patients and families in the communities served by the hospitals.

Physicians have at least three good reasons to be concerned about the unwelcome attention.

• First and foremost is the concern that patients may have been harmed, and whether that harm may recur because of systemic problems in hospital operations. Who might be the next patient to suffer similarly?
• Second, the reputation of the physician caring for the patient may be damaged even if the physician was not directly responsible for the errors.
• Third, the reputation of all physicians on the Medical Staff of the hospital is impacted when the reputation of the hospital is tarnished.

There are a number of things physicians on the Medical Staff can do when they hear about quality of care problems (including events that don’t make it into news reports).

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