PHYSICIAN PEER REVIEW: PA High Court Opens Records
Pennsylvania's Supreme Court last week issued a unanimous, nine- page ruling that physician peer reviews should not be kept confidential if there is concern that the review process was conducted unfairly -- a decision that reflects a nationwide trend among state courts to restrict the confidentiality protections of peer review findings. The decision grants Dr. Timothy Hayes, a surgeon at Darby, PA-based Mercy Fitzgerald Hospital, access to an audio tape of a meeting in which physicians reviewed his role in a 1995 surgery during which the patient's colon burst. Mercy had suspended Hayes' privileges following the mishap, and though a peer review panel later cleared him of wrongdoing, the hospital medical board overruled the peer panel and kept the suspension on his record. Pennsylvania law prohibits the disclosure of peer review reports in civil malpractice suits, but Hayes, believing that the hospital's decision was "unlawfully and improperly accomplished through coercion," argued that he should have access to the tape. The court concurred, holding that since Hayes' suit centered only on whether the review process was fair -- and not on Hayes' performance as a physician -- the confidentiality precedent did not apply. The law does not shield "those rare instances in which the peer review process was misused," the court concluded.
Out In the Open
Proponents of the decision said it will strengthen peer review by preventing the process from becoming a situation that leaves physicians without the ability to confront their accusers. But some hospitals and physicians are concerned the ruling could undermine the very intent of peer review -- a forum for frank, critical assessment of physician performance -- and ultimately affect patient care. Health law experts believe the decision to release the audio tape will pave the way for Hayes to file a breach of contract and defamation suit against the hospital and certain physicians. Allowing review panel physicians, who typically volunteer on a rotating basis to evaluate their colleagues, to be sued for defamation could alter the peer review process and inhibit doctors' willingness to participate critically in such proceedings, opponents say. In the words of Dr. Lee McCormick, past president of the Pennsylvania Medical Society, "You could have a situation where a doctor says, 'Gee, this person sends me referrals, so if he knows what I'm saying, I better be nice'" (Dilanian, Philadelphia Inquirer, 10/8).