Protection of Medical Committee Records and Peer Review in Louisiana

1. Protection of Medical Committee Records and Peer Review in Louisiana Edward P. Richards Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana State University Baton Rouge, LA 70803-1000 richards@lsu.edu http://biotech.law.lsu.edu

2. Prescription and Peremption • Did you study these in torts and/or civil procedure courses?

3. State Institutions

4. State Facilities and Open Records Requests – La RS 44:7 • Exempts medical information held by state hospitals, prisons, and other institutions providing care from open records requests • Allows institutions to make rules governing reasonable access to records for authorized individuals • Records are available through discovery if the subject’s medical condition is at issue

5. Records of Research Subjects • La RS 44:7 F • Provides that there will be no release of medical research information prepared by public institutions, including universities, doing research under IRB Direction • This includes barring release through discovery • Does not clearly allow the subject to release the info on themselves to anyone but the researcher • What if you are alleging research misconduct or malpractice?

6. Protection of Peer Review and Peer Review Records

7. Peer Review • What is peer review? • Why do we let hospitals and physicians do this, rather than a state agency? • Why is it important that it be done correctly?

8. Conflicts in Peer Review

9. Physician Conflicts • What are the possible business relationships between medical staff members? • Competitors • Partners • Referral Relationships • How do these potentially bias peer review?

10. Hospital Conflicts • Is a bad doc always bad business? • What are the economics? • Legal Issues • Independent contractor status gives some protection to the hospital • Most malpractice does not result in litigation • Litigation is in the future • Capture of the peer review process by docs

11. LA RS 13:3715.3. Peer review committee records; confidentiality • Committee and peer review records are confidential • Exceptions for med mal cases • "However, no original record or document, which is otherwise discoverable, prepared by any person, other than a member of the peer review committee or the staff of the peer review committee, may be held confidential solely because it is the only copy and is in the possession of a peer review committee. " • What does this mean? - • Smith v. Lincoln General Hosp., 605 So.2d 1347 (La. 1992)

12. What if the Doc is Contesting the Peer Review? • "except in any proceedings affecting the hospital staff privileges of a physician, dentist, psychologist, or podiatrist, the records forming the basis of any decision adverse to the physician, dentist, psychologist, or podiatrist may be obtained by the physician, dentist, psychologist, or podiatrist only."

13. Protection of Individuals and Institutions • In the OLOL case, why did the court rule that the hospital and the physician's corporation were not covered by the statute? • What does the current Section B protect? • How would this change the court's ruling? • What is the standard for immunity in the current Section B? • without malice and in the reasonable belief such action or recommendation is warranted by the facts known to him.

14. Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994)

15. Dr. Smith • What triggered the review of Dr. Smith? • What does this tell you about the medical system and where the concern for good medicine ranks as a value? • Is being an a**hole intrinsically bad for patient care? • What are other implications of personality driven disciplinary actions? • Why is Dr. Smith fighting this so hard? • How much money do you think he is spending

16. Strategic Litigation • How is he using his financial power to pressure the hospital and the committee members? • Can you use litigation to punish someone even if you probably cannot win? • SLAPP Suits • Why are judges hesitant to dismiss cases and impose sanctions?

17. The Federal Action - RICO • Racketeer Influenced Corrupt Organizations Act • Conspiracy law based on committing certain criminal predicate Acts • More Infohttp://biotech.law.lsu.edu/cases/RICO/index.htm • What happened to this claim? • What about the sanctions?

18. Federal Health Care Quality Improvement Act • Effective after this case • Cases based on this are used as precedent in OLOL because the standards and policy are the same • Provides immunity for Federal claims • Antitrust is most important for private actors • Limits some constitutional claims against state actors

19. State Claims • Who is he suing? • What are his state claims? • What actions are these claims based on? • Who was his associate? • How does this affect your opinion of plaintiff?

20. Basis for the Limitation of Privileges • What are the two issues that lead to his privileges being limited and then terminated? • Who was asked to evaluate the medical care he delivered? • Why not use the other medical staff members? • Was he given a probation period to clean up his act? • Was he allowed to present evidence to the reviewing bodies?

21. District Court • What did the district court do? • Why is this critical to protecting peer review from intimidation? • Why is litigation a problem for individual committee members even if the insurer or hospital is paying the bills? • How is this like defamation standards for news organizations?

22. Appeals Court • Why did the appeals court reverse?

23. LA Supreme Court • Why does the court analogize the peer review privilege to the privilege in defamation in suits arising out of the employer-employee relationship? [61] • Why is this privilege necessary? • What has happened to reference checking? • What are the elements of this privilege? [61]

24. What is the two step process for deciding if the privilege exists? [70] • First, it must be determined whether "the attending circumstances of a communication occasion a qualified privilege," which means that a determination must be made of whether the requirements for invoking the privilege are satisfied. • The second step of the analysis requires a determination of whether the privilege was abused, which requires that the grounds for abuse -- malice or lack of good faith -- be defined.

25. Who decides? • Does the judge or jury usually decide the second step? • What is the exception? • While the first step is generally determined by the court as a matter of law, the second step of determining abuse of a conditional privilege or malice is generally a fact question for the jury "unless only one Conclusion can be drawn from the evidence." • Did the defendant's claims arise out of the peer review process?

26. "with malice or without good faith" • What if the members of the committee hate the plaintiff and would be better off if he were out of business? • What do they have to show to defend their actions in this situation? [90] • How is this reflected in the standard in the amended statute?

27. Plaintiff's Case • Why does the court reject the plaintiff's affidavits saying he was a great surgeon and all around good guy? [106] • What is the evidence that the study of patient injuries was started without any animus toward plaintiff by defendants? [107] • Why was bringing in the Thoracic Surgery Society a good risk management move? • What standard does the court use to decide if deviations from the procedure in the bylaws are material? [120] • Where does this right of due process come from?

28. The Ruling • What was the final ruling? • Who did not get dismissed and why? • What cause of action was not dismissed? • Why? • This is also true of the federal law • What sort of proceeding does the court seem to be treating the peer review process like?