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 SB 672 (Hernandez) Page 2 of ? 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 SB 672 (Hernandez) Page 3 of ? 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 SB 672 (Hernandez) Page 4 of ? 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 SB 672 (Hernandez) Page 5 of ? 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. SB 672 (Hernandez) Page 6 of ? 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. SB 672 (Hernandez) Page 7 of ? 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 SB 672 (Hernandez) Page 8 of ? 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. SB 672 (Hernandez) Page 9 of ? 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. **************