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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