BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 672|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: SB 672
Author: Hernandez (D)
Amended: 5/13/15
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 5/5/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Discovery: pharmacy review committees
SOURCE: California Pharmacists Association
DIGEST: This bill adds pharmacists to the Evidence Code's list
of organized medical committees and peer review bodies whose
proceedings and records are currently exempt from discovery in
civil litigation.
ANALYSIS:
Existing law:
1)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.
SB 672
Page 2
2)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 and 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.
3)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.
4)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.
5)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. Advance practice pharmacists
are authorized to:
SB 672
Page 3
Perform patient assessments;
Order and interpret drug therapy-related tests;
Refer patients to other health care providers;
Participate in the evaluation and management of diseases
and health conditions in collaboration with other health
care providers; and
Initiate, adjust, or discontinue drug therapy in a
specified manner.
1)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.
2)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.
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.
3)Provides that the prohibitions against testimony and discovery
SB 672
Page 4
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% 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.
This bill:
1)Exempts from discovery the proceedings and records of
organized committees of pharmacists, and exempts from
testimony any person in attendance at a meeting of a
pharmacist committee, unless one of the existing law
exemptions applies.
2)Makes other technical or conforming changes.
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
SB 672
Page 5
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
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
SB 672
Page 6
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
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, Chapter 469, Statutes of
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
SB 672
Page 7
pharmacists from discovery in civil litigation. It also
generally protects any person in attendance at a meeting of such
a committee against testifying as to what transpired at that
meeting.
Comment
As stated by 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified5/13/15)
California Pharmacists Association (source)
California Society of Health-System Pharmacists
SB 672
Page 8
OPPOSITION: (Verified5/13/15)
None received
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
5/13/15 17:26:30
**** END ****