BILL ANALYSIS Ó
SB 672
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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
SB 672
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