Colorado and Florida: A stark look at professional review when protections are removed
by Benjamin Kupersmit, President, Kupersmit Research
Featured in the May-June 2019 Colorado Medicine Colorado Medicine.
The Colorado Medical Society regularly polls physician members to inform policy decisions, and our January 2019 survey shows wide-ranging confidence in patient safety systems in Colorado, high levels of comfort participating in professional review and significant concern about efforts to remove protections from the peer review system.
In preparation of a long-anticipated legislative move this year by Colorado lawyers that sue physicians to expand the opportunity for lawsuits by removing professional (peer) review legal protections, and since Florida is one of the only states in the country that has removed professional review protections, CMS also commissioned and funded a survey of Florida Medical Association (FMA) physicians to learn the effect of that change on physician confidence and participation in peer review systems.
The February 2019 CMS survey of FMA members probed Florida physician experiences in the wake of a 2017 Florida Supreme Court ruling removing protections for the state’s peer review system. This survey shows that Florida physician confidence in professional review has virtually collapsed, willingness to participate in the system has plummeted, and negative impacts are being seen across the health care system in terms of decreased patient access, increased defensive medicine and others.
The Florida survey results were shared with the physician members of the CMS Expert Panel on Professional Review, who noted that the Florida data starkly demonstrates that making documents from peer review discoverable has far-ranging impacts for patients and the health system, and delivers a critical blow to peer review and patient-safety systems that took years to develop and are not easily recovered.
2019 Patient Safety Survey: Colorado
The survey of Colorado Medical Society members examined key aspects of the peer review system in Colorado. The survey was conducted Jan. 16-31, 2019, and 902 CMS members completed the survey.
CMS physicians express confidence in the current peer review system: a solid majority of those familiar with the system say it is working, significant majorities would be at least “somewhat” comfortable going through peer review, and strong majorities would be comfortable serving on a peer review committee.
Physicians who have served on a peer review committee (and whom are thus most familiar with the system) have relatively more positive views of peer review, and would almost universally agree to serve on a peer review committee again.
Nearly all CMS physicians say it is important that protections for documents from peer review be kept in place, with more than three-quarters (79 percent) saying this is “extremely” important. If these protections are removed, upwards of 70 percent of CMS physicians believe there will be less reporting of mistakes and near misses; there will be more physicians hesitant to see risky and complex patients; and there will be more defensive medicine, higher insurance premiums and more lawsuits. Substantial majorities also say fewer physicians would be willing to sit on peer review committees.
2019 Patient Safety Survey: Florida
The survey of Florida Medical Association members focused on the peer review system after the Florida Supreme Court 2017 decision in the Edwards v. Thomas case on the discoverability of records relating to adverse events. The ruling ended work-product privilege over records relating to adverse medical incidents, including the reports of an external peer review committee, fact-finding work by medical defense attorneys and potentially other documents that were previously protected from being used in a lawsuit.
The survey examined FMA member perceptions of the Edwards decision, perceptions of the peer review system, and impacts of the decision on peer review in Florida. The survey was conducted Feb. 28-March 19 and 928 FMA members completed the survey.
FMA physicians have a decidedly negative view of the October 2017 Edwards decision: 73 percent are negative, including 60 percent who have a “very” negative opinion. Physicians who practice in risky specialties – neurosurgery, obstetrics/gynecology, orthopedics, general surgery and urology – have an even more negative view, with 73 percent saying they have a “very” negative opinion and 80 percent negative overall.
FMA physicians paint a picture of a peer review system that has lost their confidence: even among those who have served on committees in the past, just one-quarter would feel comfortable serving again and few would feel comfortable going through peer review if they were involved in an adverse event. Fully 70 percent would not be comfortable going through peer review if involved in a risky event. By contrast, in Colorado, 9 percent of CMS member physicians would not be comfortable.
FMA physicians report that they have seen a wide range of negative impacts since the Edwards decision, most notably:
- 55 percent report see more defensive medicine,
- 52 percent see some physicians less willing to accept complex or risky patients, with 67 percent of those in risky specialties saying as such, and
- 35 percent see fewer physicians willing to sit on peer review committees, with 46 percent of those in risky specialties saying as such.
Willingness of Florida physicians to serve on peer review committees is also quite low, with 46 percent saying they are not comfortable serving. In Colorado, 7 percent of CMS member physicians say they are not comfortable.
We shared the results of the Florida survey with a panel of CMS physicians who have been active participants or in leadership in professional review in their facilities/communities. They were struck by the extent and depth of the negativity toward participation in the peer review system in Florida, and how quickly this shift had occurred (it has been just 18 months since the Edwards decision).
They noted that it has been a 20-year-long movement to shift the culture in Colorado – in facilities and training of new physicians – to one where physicians feel safe reporting errors or near misses. The Florida data suggests that these gains can evaporate quickly. These experts also express pessimism that there would be a path back to openness after going down the punitive road.