Peer Review Is Threatened, but (P)So What: Patient Safety Organization Utilization in Florida after Amendment 7 as a Troubling Sign for PSQIA
Arnold, Michael, Columbia Journal of Law and Social Problems
This Note considers the interaction between medical peer review, patient safety organizations (PSOs) and Florida's Amendment 7, also known as the Patients' Right to Know. All three are directed towards curing the epidemic of medical error in the United States: peer review allows doctors and hospitals to evaluate adverse medical incidents, PSOs were conceived of as a clearinghouse for data about medical error that can be analyzed in exchange for confidentiality and privilege for the data, and Amendment 7 makes information about adverse incidents more accessible to patients and the malpractice litigation system. The confluence of these forces also gave rise to a natural experiment. Because Amendment 7 threatened the confidentiality of the peer review system, Florida healthcare providers had a unique incentive to create PSOs to take advantage of the associated confidentiality and privilege. This Note examines the evidence, primarily from PSO registrations, and concludes that Florida providers in fact did not make use of PSOs in addressing Amendment 7 challenges, suggesting that PSOs might be flawed. The Note examines some of these flaws, and offers some suggestions for improving PSOs to make them more attractive for healthcare providers.
In 2002, while undergoing surgery for sinus problems, Annie Acosta's surgeon punctured her brain and damaged her eye, resulting in double vision unless she walks with her head down.1 After suing her physician, Acosta was awarded $350, 000. 2 Five years later, in 2007, the story of another woman, Claudia Mejia drew attention-grabbing headlines across the nation; representative is the Associated Press Wire's headline "Florida Woman Sues Hospital After She Contracted Flesh-Eating Bacteria, Lost All Her Limbs."3 Drawing interest nationwide4 but particularly in her native Florida, Mejia's experience with Florida hospitals was truly disturbing: she contracted her condition in the hospital after delivering a healthy boy, and only twelve days later doctors amputated her legs and most of her arms.5
Acosta and Mejia were not healed by their interactions with the United States medical system, but were rather left permanently scarred. They are not alone, as medical error has been described as an epidemic.6 They also share another feature: both women saw their stories made very public as part of the bitter debate in Florida surrounding Amendment 7, termed the Patients' Right to Know About Adverse Medical Incidents.7 Acosta's story was featured in the Florida press as an example of a case that would turn out differently after the passage of Amendment 7,8 while papers dubbed Mejia "the woman who has become the symbol for Amendment 7" in the wake of her disturbing incident playing out against a prolonged court battle about the meaning and reach of Amendment 7 in Florida.9
There are many systems in place to try to address the medicalerror epidemic. This Note considers the interaction of a few of these different institutions: medical peer review, patient safety organizations, and the legal system.
Medical peer review is a process in which a committee assesses the quality of care provided by a particular physician, often in the wake of an adverse medical incident.10 These committees evaluate a physician's work with an eye towards determining whether that physician should continue to be allowed to practice in the hospital's facilities.11 Maintaining a medical peer review process is a requirement for a hospital's accreditation by the Joint Commission on Accreditation of Hospitals (JCAHO).12 To encourage doctors to participate in the peer review process, the federal Health Care Quality and Improvement Act (HCQIA) provides federal immunity from civil money damages for the doctors that sit on the committees.13 States often provide similar grants of immunity.14 Moreover, the notes, analyses and work product of the peer review process can be granted protection from certain discovery actions by state confidentiality laws. …