BILL ANALYSIS Ó SB 672 Page 1 Date of Hearing: June 16, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 672 (Hernandez) - As Amended May 13, 2015 PROPOSED CONSENT SENATE VOTE: 36-0 SUBJECT: Discovery: pharmacist review committees KEY ISSUE: Should peer review records of pharmacists be exempt from discovery requests in the same manner that peer review records of other medical professionals are currently exempt? SYNOPSIS This non-controversial bill would add pharmacists to the list of medical professionals whose peer review records are exempt from discovery requests under the Evidence Code. The rationale for exempting medical peer review records from discovery requests is to encourage maximum candor in the evaluation of medical professionals. The exemption does not, as a general rule, apply to the statements of any person who is a party to an action pertaining to the subject matter of the peer review. Although pharmacists are not among the medical professionals listed in the relevant provisions of the Evidence Code, their peer review SB 672 Page 2 and quality control records are nonetheless similarly exempt from discovery requests under provisions of the Business & Professions (B&P) Code. However, the B&P Code provisions only apply to pharmacists who practice in a pharmacy, generally defined as the physical premises of a licensed pharmacy. The B&P Code provisions do not apply, therefore, to pharmacists who work in other settings, including "advanced practice pharmacists" who work outside of a pharmacy in a hospital or clinic, often in collaboration with other health care providers. Because board recognition of "advanced practice pharmacists" only came about in 2013, the provisions of the B&P Code exempting peer review records of pharmacists who work in pharmacies from discovery requests (which have not been amended since they were enacted in 2000) do not account for those pharmacists who work in other settings. This bill would sensibly address this situation by simply adding pharmacists - whether advanced practice pharmacists or those practicing in a traditional pharmacy - to the list of medical professionals whose peer review records are generally exempted from discovery under the Evidence Code. This bill is sponsored by the California Pharmacists Association and supported by the University of California and the California Society of Health-System Pharmacists. There is no known opposition to this bill, which passed off the Senate Floor by a 36-0 vote. SUMMARY: Adds "pharmacist" to the existing list of medical professionals whose peer review proceedings and records are exempt from civil discovery and required testimony. EXISTING LAW: 1)Exempts from civil discovery requests the proceedings and records of 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 a SB 672 Page 3 peer review body having the responsibility of evaluation and improvement of the quality of care rendered in the hospital, or for any medical, dental, dental hygienist, podiatric, dietetic, veterinary, acupuncture, or chiropractic societies, marriage and family therapist, licensed clinical social worker, professional clinical counselor, or psychological review committees, as specified. Specifies that any person in attendance at a meeting of any of these organized committees shall not be required to testify as to what transpired at that meeting. (Evidence Code Section 1157 (a)-(b).) 2)Specifies that the prohibition against discovery and testimony as to peer review records and proceedings does not apply to the statements of a person at a peer review meeting if that person is a party to an action or proceeding, the subject matter of which was reviewed at the meeting, or to a person requesting staff privileges, or in an action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits. (Evidence Code Section 1157 (c).) 3)Specifies that the prohibition against discovery and testimony does 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. (Evidence Code Section 1157 (d).) 4)Requires a pharmacy, as defined, to establish a quality assurance program that shall, at a minimum, document medication errors attributable, in whole or in part, to the pharmacy or its personnel. Specifies that records generated SB 672 Page 4 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 provided. (Business & Professions Code Section 4125.) 5)Defines "peer review," for purposes of the healing arts, to mean a process by which a peer review body reviews basic qualifications, staff privileges, employment, medical outcomes, or professional conduct of medical professionals in order to make recommendations for quality improvement or education; determine whether a medical professional may continue to practice, or determine the parameters of that practice; assess and improve the quality of care rendered in a health care facility, clinic, or other setting providing medical services; or to engage in other activities, as specified. Requires the medical chief of staff, executive officer, medical director or other administrator of a peer review body to file a report with the appropriate licensing board, as specified. (Business & Professions Code Section 805.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: Existing law provides for the establishment of peer review committees in order to evaluate the performance of licensed medical professionals, assess and improve the quality of medical care, and, if necessary, determine whether a medical professional may continue to practice. Medical peer review bodies must submit reports to their appropriate licensing boards whenever taking disciplinary action, including the denial of staff privileges or employment to a medical professional. Because an effective peer review process is essential to patient SB 672 Page 5 safety and quality of care, the Legislature has exempted medical peer review records from the usual rules governing the discovery and admissibility of evidence in litigation. Section 1157 of the Evidence Code, in particular, expressly exempts from discovery the peer review proceedings and records of many different medical professionals: doctors, dentists, podiatrists, dieticians, psychologists, marriage and family therapists, clinical social workers, veterinarians, chiropractors, and acupuncturists, among others. Section 1157 also specifies that any person in attendance at a meeting of any of these organized committees cannot be required to testify as to what transpired at that meeting. The policy rationale for exempting medical peer review records and not compelling testimony from peer review participants is to encourage maximum candor in the evaluation of medical professionals. However, pharmacists are notably absent from the list of medical professionals currently covered by Section 1157. This non-controversial bill would add pharmacists to the list of medical professionals whose peer review records are exempt from discovery requests. Although pharmacists are not among the medical professionals listed in the existing provisions of the Evidence Code, their peer review and quality control records are already exempted from discovery requests under provisions of the Business & Professions (B&P) Code. However, the B&P provisions only apply to pharmacists who practice in a "pharmacy," which is generally defined as the physical premises of a licensed pharmacy. The B&P provisions do not apply, therefore, to other pharmacists - especially certified "advanced practice pharmacists" - who work outside of a pharmacy in a hospital or clinical setting, often in collaboration with other health care providers. Because board recognition of "advanced practice pharmacists" came about relatively recently, with the enactment of SB 493 (Hernández, Chapter 469, Stats. of 2013), the provisions of the B&P Code Section (that has not been amended since it was enacted in 2000) exempting pharmacy peer review records, do not apply to them. Peer review records relating to advanced practice pharmacists, therefore, are protected by SB 672 Page 6 neither the provisions of the B&P Code, nor the Evidence Code. SB 672 sensibly addresses this gap by simply adding pharmacists - whether advanced practice pharmacists or those practicing in a traditional pharmacy - to the list of medical professionals whose peer review records are generally exempted from discovery and whose testimony cannot be compelled under the Evidence Code. ARGUMENTS IN SUPPORT: According to the California Society of Health-System Pharmacists (CSHSP), while existing law protects from discovery peer review records for a variety of healthcare professionals, pharmacists practicing in hospitals are not afforded that same protection. CSHSP believes that SB 672 is "a commonsense bill that will remedy an oversight in the law and will help encourage additional pharmacist involvement in the medical peer review process." The University of California (UC), which operates seventeen health-professional schools, including two schools of pharmacy and five academic medical centers, supports this bill. UC argues that "records associated with pharmacist peer review should be given the same protection as other professionals' records," and it believes that SB 672 will provide necessary "legal protections for pharmacists that participate in medical peer review programs in a hospital or clinical setting." Recent Related Legislation: SB 493 (Chapter 469, Statutes of 2013), among other things, established California State Board of Pharmacy recognition of an "advanced practice pharmacist," as defined, and authorized advanced practice pharmacists to perform certain functions both within or outside of a licensed pharmacy. SB 672 Page 7 REGISTERED SUPPORT / OPPOSITION: Support California Pharmacists Association (sponsor) California Society of Health-System Pharmacists University of California Opposition None on file Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334 SB 672 Page 8