BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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          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  








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            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  








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            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  








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          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  








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          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.  
          


          









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          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

















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