Supreme Court ruling opens peer review records
In a federal case likely to have broad implications for physicians across the country, the U.S. Supreme Court let stand a ruling that allows a defense attorney to access records of private peer review meetings.
The case involves Wolfgang Schug, MD, an emergency room physician in Clear Lake, CA, who allegedly recommended to the parents of a seriously ill infant that they take their daughter to another hospital to see a specialist. The child subsequently died. Although Schug was acquitted of criminal charges, the parents are suing him under the Emergency Medical Treatment and Active Labor Act (EMTALA), which concerns patient dumping.
The parents’ attorney, Richard J. Massa, JD, based in Lakeport, CA, tried to subpoena the records of a peer review session conducted at Rosebud Community Hospital following the incident, but was blocked by a California law designed to protect the privacy of peer review discussions. By suing under EMTALA, a federal law, the parents effectively circumvented the state restriction.
Some physicians say the ruling sets a terrible precedent which may compromise the entire peer review process. "Right now, they’ve breached the whole thing," says J.C. Pickett, MD, an orthopedist in Napa, CA, and the president of the California Medical Association, based in San Francisco. "There’s no way doctors are going to cooperate. They’re going to simply refuse to do [peer review] or they will do it in a perfunctory fashion without bothering to do it properly. A ruling like this aids the bad practice of medicine, because ultimately it prevents us from getting at the malefactors."
Massa says most physicians aren’t doing much to police themselves as it is. "The peer review process in general is unregulated," he says. "There is no system in place for any outside auditing or scrutiny. They appear to be answerable to no one. Since it’s conducted in total secrecy, nobody ever finds out if they don’t do their job. No institution in the history of mankind has ever functioned well where it had absolute power and operated in total secrecy."
Massa points out that under the current system, it’s unrealistic to expect physicians in small communities particularly to "come down hard" on each other. "That’s not human nature," he says. "It doesn’t occur and it’s not going to occur." He points out that during the Schug case, it emerged in testimony that no physician had ever been disciplined at Rosebud.
Pickett acknowledges that reviews in small communities can be difficult, but stresses that if an especially touchy situation emerges, the physicians could ask for outside help in doing peer review.
But regarding the idea that doctors won’t do much [to police each other], "the fact is that if the peer review process is not going to be confidential, then doctors will refuse to do any, and then you won’t have anybody doing it," he says. "It’s a medical staff function, and nobody else has a right to do this."
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