BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 672 (Hernandez)
Version: April 6, 2015
Hearing Date: May 5, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Discovery: pharmacy review committees
DESCRIPTION
This bill would add pharmacists to the list of organized medical
committees and peer review bodies whose proceedings and records
are currently exempt from discovery in civil litigation.
BACKGROUND
Under existing law, Section 805 of the Business and Professions
Code, the healing arts professions and mental health professions
have instituted a peer review body which reviews basic
qualifications, staff privileges, employment, medical outcomes,
or professional conduct of the license holders. The purpose of
these peer review bodies is to make recommendations to improve
the quality of service and if necessary to improve the
educational aspects of licensure.
To ensure the effectiveness of these proceedings and thereby to
arguably elevate the quality of in-hospital medical practice,
Section 1157 of the Evidence Code exempts the proceedings and
records of organized committees of medical, medical-dental,
podiatric, registered dietitian, psychological, marriage and
family therapist, licensed clinical social worker, professional
clinical counselor, or veterinary staffs in hospitals or their
"Section 805" peer review committees that have the
responsibility of evaluation and improvement of the quality of
care from discovery. It also prohibits any person in attendance
at a meeting of any of these committees from being required to
testify as to what transpired at the meeting, except in limited
circumstances (such as where the person is a party to an action
or proceeding the subject matter of which was reviewed at that
meeting). As such, this section reflects a policy that favors
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ensuring confidentiality for staff in order to encourage their
candor in peer review proceedings over the policy in favor of
ensuring access of litigants to evidence produced by those peer
review bodies. The public policy underlining the enactment of
Evidence Code Section 1157 was expressed by the court in
Matchett v. Superior Court (1974) 40 Cal.App.3d 623. In that
case, the court stated that:
. . . the quality of in-hospital medical care depends heavily
upon the (peer review) committee members' frankness in
evaluating their associates' medical skills. . . although
composed of volunteer professionals, these committees are
affected with a strong element of public interest. . .
California law recognizes this public interest by endowing the
practitioner-members of the hospital staff committees without
measure of immunity from damage claims arising from committees
activities. Evidence Code section 1157 expresses a
legislative judgment that the public interest in medical staff
candor extends beyond damage immunity and requires a degree of
confidentiality. . . Section 1157 was enacted upon the theory
that external access to peer investigations conducted by staff
committees stifles candor and inhibits objectivity. It
evinces a legislative judgment that the quality of in-hospital
medical practice will be elevated by armoring staff inquiries
with a measure of confidentiality.
This confidentiality exacts a social cost because it impairs
malpractice plaintiffs' access to evidence. In a damage suit
for in-hospital malpractice against doctor or hospital or
both, unavailability of recorded evidence of incompetence
might seriously jeopardize or even prevent the plaintiff's
recovery. Section 1157 represents a legislative choice
between competing public concerns. It embraces the goal of
medical staff candor at the cost of impairing plaintiffs'
access to evidence. (Id. at 629 (internal citation and
footnotes omitted).)
Separate from Section 1157, the Business and Professions Code
requires every pharmacy to establish a quality assurance program
that must, at a minimum, document medication errors
attributable, in whole or in part, to the pharmacy or its
personnel. The stated purpose of this quality assurance program
is to assess errors that occur in the pharmacy in dispensing or
furnishing prescription medications so that the pharmacy may
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take appropriate action to prevent a recurrence. While this
section does not prohibit testimony in similar fashion as
Evidence Code Section 1157, it does provide that any records
generated for and maintained as a component of a pharmacy's
ongoing quality assurance program shall be considered peer
review documents and not subject to discovery in any
arbitration, civil, or other proceeding, except as otherwise
specified. (See Bus. & Prof. Code Sec. 4125.) Thus, largely,
pharmacy peer review committees have, until recently, shared
similar protections as those professions listed under Evidence
Code Section 1157.
Notably, in 2013, SB 493 (Hernandez, Ch. 469, Stats. 2013)
established board recognition for an advanced practice
pharmacist, as defined, and in doing so authorized additional
functions that an advanced practice pharmacist could undertake,
such as performing patient assessments and participating in the
evaluation and management of diseases and health conditions in
collaboration with other health care providers. Insofar as
those pharmacists are not operating in a "traditional" pharmacy
setting and are able to engage in advanced functions, it appears
that the discovery and testimony protections of existing law may
not apply to peer review committees involving these pharmacists.
Because these pharmacists are not otherwise listed under
Section 1157 of the Evidence Code either, records or proceedings
activities of any peer review bodies involving advance practice
pharmacists could be discoverable.
Accordingly, this bill seeks to protect documents and
proceedings of peer review committees involving these
pharmacists from discovery in civil litigation. It would also
generally protect any person in attendance at a meeting of such
a committee against testifying as to what transpired at that
meeting.
CHANGES TO EXISTING LAW
Existing law requires organized committees and peer review
committees of these health care professionals to report to the
professional licensing board whenever a disciplinary action is
taken against a member. (Bus. & Prof. Code Sec. 805.)
Existing law requires every pharmacy to establish a quality
assurance program that must, at a minimum, document medication
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errors attributable, in whole or in part, to the pharmacy or its
personnel. Existing law provides that the purpose of the
quality assurance program is to assess errors that occur in the
pharmacy in dispensing or furnishing prescription medications so
that the pharmacy may take appropriate action to prevent a
recurrence. (Bus. & Prof. Code Sec. 4125(a).)
Existing law provides that records generated for and maintained
as a component of a pharmacy's ongoing quality assurance program
shall be considered peer review documents and not subject to
discovery in any arbitration, civil, or other proceeding, except
that such privilege does not prevent review of a pharmacy's
quality assurance program and records maintained as part of that
system by the board as necessary to protect the public health
and safety or if fraud is alleged by a government agency with
jurisdiction over the pharmacy. Additionally, this protection
does not affect the discoverability of any records not solely
generated for and maintained as a component of a pharmacy's
ongoing quality assurance program. (Bus. & Prof. Code Sec.
4125(b).)
Existing law defines "pharmacy" to mean an area, place, or
premises licensed by the board in which the profession of
pharmacy is practiced and where prescriptions are compounded.
"Pharmacy" includes, but is not limited to, any area, place, or
premises described in a license issued by the board wherein
controlled substances, dangerous drugs, or dangerous devices are
stored, possessed, prepared, manufactured, derived, compounded,
or repackaged, and from which the controlled substances,
dangerous drugs, or dangerous devices are furnished, sold, or
dispensed at retail. (Bus. & Prof. Code Sec. 4037(a).)
Existing law defines "advanced practice pharmacist" to mean a
licensed pharmacist who has been recognized as an advanced
practice pharmacist by the board, pursuant to specified law. A
board-recognized advanced practice pharmacist is entitled to
practice advanced practice pharmacy within or outside of a
licensed pharmacy, as specified. (Bus. & Prof. Code Sec.
4016.5.) Existing law authorizes advance practice pharmacists
to:
1)perform patient assessments;
2)order and interpret drug therapy-related tests;
3)refer patients to other health care providers;
4)participate in the evaluation and management of diseases and
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health conditions in collaboration with other health care
providers; and
5)initiate, adjust, or discontinue drug therapy in a specified
manner. (Bus. & Prof. Code Sec. 4052.6(a).)
Existing law exempts from discovery the proceedings and records
of organized committees of medical, medical-dental, podiatric,
registered dietitian, psychological, marriage and family
therapist, licensed clinical social worker, professional
clinical counselor, or veterinary staffs in hospitals or of
their peer review committees that have the responsibility of
evaluation and improvement of the quality of care. (Evid. Code
Sec. 1157(a).)
Existing law provides that, except as otherwise provided, no
person in attendance at a meeting of any of those committees
shall be required to testify as to what transpired at that
meeting. Existing law provides that the prohibition relating to
discovery or testimony does not apply to the statements made by
any person in attendance at a meeting of any of those committees
who is a party to an action or proceeding the subject matter of
which was reviewed at that meeting, or to any person requesting
hospital staff privileges, or in any action against an insurance
carrier alleging bad faith by the carrier in refusing to accept
a settlement offer within the policy limits. (Evid. Code Sec.
1157(b), (c).)
Existing law also provides that the prohibitions against
testimony and discovery above do not apply to medical, dental,
dental hygienist, podiatric, dietetic, psychological, marriage
and family therapist, licensed clinical social worker,
professional clinical counselor, veterinary, acupuncture, or
chiropractic society committees that exceed 10 percent of the
membership of the society, nor to any of those committees if any
person serves upon the committee when his or her own conduct or
practice is being reviewed. (Evid. Code Sec. 1157(d).)
This bill would additionally exempt from discovery the
proceedings and records of organized committees of pharmacists,
and would exempt from testimony any person in attendance at a
meeting of a pharmacy committee, unless one of the existing law
exemptions applies.
This bill would make other technical or conforming changes.
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COMMENT
1. Stated need for the bill
According to the author:
Existing law protects from discovery the proceedings and
records of peer review bodies for numerous health care
professionals (Evidence Code [Sec.] 1157).
Outpatient community pharmacies are currently required to have
peer review programs and the records associated with
pharmacist review are protected from discovery (Business and
Professions Code [Sec.] 4125). However, this protection does
not apply for pharmacists participating in peer review outside
of a pharmacy, such as through a hospital or clinic.
Since pharmacists are not listed in Evidence Code Section
1157, the proceedings and records of pharmacist peer review
are not protected by this section.
This bill would add pharmacists to the list of health care
professions whose peer review proceedings and records are
protected from discovery under Evidence Code Section 1157.
2. Evidence Code Section 1157: policy choice exempting peer
review committee activities from discovery
The Evidence Code provides that the proceedings and records of
various professions conducting peer review are not subject to
discovery. This exemption from discovery originally applied to
physicians, dentists, podiatrists, dietitians, and
veterinarians, until 1985, when SB 328 (Presley, Ch. 725, Stats.
1985) added psychologists to the list. In 1994, SB 1279
(Torres, Ch. 815, Stats. 1994) added acupuncturists; in 2000, AB
2374 (Lempert, Ch. 136, Stats. 2000) added marriage and family
therapists and licensed clinical social workers; and in 2011, SB
146 (Wyland, Ch. 381, Stat. 2011) added professional clinical
counselors. This bill would now add pharmacists.
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As discussed in the Background, Evidence Code Section 1157 was
originally enacted to encourage self-policing on the part of the
professions named. By assuring witnesses appearing before the
peer review committees that their testimony will not be
disclosed in litigation, it was hoped that candid assessments
and objectivity would be encouraged.
While pharmacists are not currently listed among the professions
whose peer review bodies share protection under Section 1157,
the Business and Professions Code also provides that records
generated for and maintained as a component of a pharmacy's
ongoing quality assurance program shall be considered peer
review documents and not subject to discovery in any
arbitration, civil, or other proceeding, except as specified.
(See Bus. & Prof. Code Sec. 4125.) As explained by the author,
this protection is for outpatient community pharmacy peer review
programs only; "[p]harmacists practicing in hospitals
participate in peer review along with other health care
professionals but are not listed among the health care
professionals whose peer review records are protected [from
discovery]." To effectively expand that protection to all
pharmacists, this bill would amend Evidence Code Section 1157 to
add pharmacists to the list of professionals whose ethics
committees and peer review bodies are protected from discovery
and testimony.
According to the sponsor, the California Pharmacists Association
(CPhA):
The records associated with pharmacist peer review should be
given the same protections as other professionals' records. .
. . Pharmacists provide patient care that optimizes
medication therapy and promotes health, wellness, and disease
prevention. In addition to practicing in outpatient community
pharmacies, pharmacists practice in hospitals, clinics,
long-term care facilities, and other healthcare settings.
Outpatient community pharmacies are currently required to have
peer review programs and the records associated with
pharmacist review are protected from discovery (Business and
Professions Code [Sec.] 4125). However, this protection does
not apply to pharmacists participating in peer review outside
of a pharmacy, such as through a hospital or clinic. Since
pharmacists are not listed in Evidence Code [Sec.] 1157, the
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proceedings and records of pharmacist peer review are not
protected by this section.
Pharmacists want certainty of legal protection in order to
engage in honest communication and disclosure during a peer
review process. . . .
Thus, without certainty that the legal protection of Evidence
Code Section 1157 will apply to these pharmacists as well, CPhA
believes that pharmacists may not engage in clinical peer review
going forward, making it more difficult to continue developing
the highest quality of care for patients. This bill would
provide that certainty and, in doing so, seeks to ensure higher
quality of care for consumers by way of promoting the candor of
pharmacists in peer review proceedings.
3. Clarifying technical amendments
The following amendments would make clarifying and technical
changes to ensure that this bill has the intended effect of
applying discovery protections to organized committees of all
pharmacists and not just those operating in a pharmacy.
Suggested amendments :
On page 2, line 6 and line 15, strike "pharmacy" and insert
"pharmacist"
On page 3, line 3, strike "pharmacy" and insert "pharmacist"
Support : None Known
Opposition : None Known
HISTORY
Source : California Pharmacists Association
Related Pending Legislation : None Known
Prior Legislation :
SB 493 (Hernandez, Ch. 469, Stats. 2013) See Background.
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SB 146 (Wyland, Ch. 381, Stats. 2011) See Comment 2.
SB 150 (Figueroa, 2001) would have created additional exceptions
to the general prohibition against discovery of the proceedings
or recordings of organized committees or peer review bodies of
specified professions, and the general prohibition against
testimony of any person in attendance at a meeting thereof.
That bill died in this Committee.
AB 2374 (Lempert, Ch. 136, Stats. 2000) See Comment 2.
SB 1279 (Ch. 815, Stats. 1994) See Comment 2.
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