Protecting Peer Review

1. Protecting Peer Review Gordon H. Smith, Esq. Maine Medical Association

2. Peer Review in 2012 • Continuing pressures to improve quality • OPPE, FPPE, physician core competencies • The use of data for benchmarking • Pressure for Public Reporting • Bias/Conflicts of Interest

3. Why is peer review protected? 32 MRSA §3296 “All proceedings and records of proceedings concerning medical staff reviews, hospital reviews and other reviews of medical care conducted by committees of physicians and other health care personal on behalf of hospitals located within the State or on behalf of individual physicians, when the reviews are required by state or federal law, rule or as a condition of accreditation by the Joint Commission on Accreditation of hospitals or the American Osteopathic Association Committee or Hospital Accreditation or are conducted under the auspices of the state or county professional society to which the physician belongs, are confidential and are exempt from discovery”.

4. Availability of Confidential Information 24 MRSA §2510 (3) “In no event may confidential information received, maintained or developed by the board, or disclosed by the board to others, pursuant to this chapter, or information, data, incident reports or recommendations gathered or made by or on behalf of a health care provider pursuant to this chapter, be available for discovery, court subpoena or introduced into evidence in any medical malpractice suit or other action for damages arising out of the provision or failure to provide health care services. This confidential information includes reports to and information gathered by a professional review committee.”

5. Immunity • 24 MRSA §2511 • “Any person acting without malice, physician, podiatrist, health care provider, health care entity or professional society, any member of a professional competence committee or professional review committee, any board or appropriate authority is immune for civil liability: • Reporting. For making any report or other information available to any board, appropriate authority, professional competence committee or professional review committee pursuant to law; • Assisting in preparation. For assisting in the origination, investigation, or preparation of the report or information described in subsection 1; or • Assisting in duties. For assisting the board, authority or committee in carrying out any of its duties or functions provided by law.”

6. Immunity 32 MRSA §3293 “A physician licensed under this chapter who is a member of a utilization review committee, medical review committee, surgical review committee, peer review committee or disciplinary committee that is a requirement of accreditation by the Joint Commission or is established or operated under the auspices of the physician’s respective state or county professional society or the Board of Licensure in Medicine is immune from civil liability for undertaking or failing to undertake an act within the scope of the function of the committee”.

7. External Peer Review 24 MRSA §2503 (4) “External professional competence committee. Where the nature, size or location of the health care provider makes it advisable, the provider may, upon recommendations of its medical staff, utilize the services of an external professional competence committee or one formed jointly by 2 or more providers”.

8. External Peer Review Program The Maine Medical Association has operated an external peer review program for the last twenty-five years. A. Protected by statute B. Provided by board-certified physicians C. Ideal for critical access hospitals D. Now being expanded and improved through a Maine CDC funded grant.

9. Cases and Questions Gordon H. Smith, Esq. gsmith@mainemed.com 207-622-3374 ext. 212