(bright music) - Welcome to "Forum 360," the show with a global outlook, but local view.

I'm Sally Henning.

Protecting patient health or protecting the medical industry?

We're talking about peer review.

And today, two super lawyers, Christopher Huryn and Lee Plakas, are gonna debate the medical peer review information controversy.

We want to know their prescriptions for improving healthcare for reducing the waste of health dollars as well on unnecessary litigation.

First of all, we have Chris Huryn, who is an attorney and partner with Brouse McDowell in Akron.

And for the record, I was working there a hundred years ago before you were born.

He's also the head of his firm's healthcare practice, the healthcare practice chair.

And he has broad knowledge of healthcare laws, regulations, and he provides legal counsel and problem solving to help medical providers with both strategic planning and legal guidance while avoiding legal issues that could prevent them from reaching their goals.

Chris represents and counsel's numerous hospitals, health systems, physicians, physician groups, et cetera.

We welcome you to "Forum 360."

- Thank you, Sally.

Nice to be here.

- Thank you.

And our other super lawyer today is Mr. Plakas.

Lee Plakas is an attorney and managing partner at Plakas Mannos in Canton, Ohio.

Lee has been involved with hundreds of civil jury trials, has been on both sides of the healthcare industry, both representing hospitals and suing hospitals.

He's been state and federal court.

He has the broad spectrum of all different types of trial successes, and his successes include the largest defamation verdict in Ohio history, the $44 million verdict in Gibson's Bakery versus Oberlin College, and which of course was, in essence, a reverse discrimination case.

And also 14 million result against the regional hospital for engaging in a pattern of corrupt activities.

And he's had at least seven-figure verdicts in how many cases?

- A number of 'em, - A number.

He's been involved in both discrimination, employment personal injury, malpractice cases, all kinds of civil cases.

And today we wanna know about your view of this issue of peer review and peer review privilege, but we welcome you, first of all, to "Forum 360."

- Thank you.

It's great to be here with you and Chris, who I have a great deal of respect for.

- That's great.

So let's start with you, Chris.

What is your view of the significance of the peer review privilege?

First of all, what is it?

- Yeah, so let's talk about some setting the groundwork, some context for our discussion.

So a physician cannot just walk into any hospital and do a procedure or surgery.

They have to be granted privileges to do that.

They have to demonstrate to the hospital that they have the education, the training, and the experience to perform a procedure and then to be able to do their procedure at the hospital.

- So, first, we're talking about two different kinds of privilege.

- Yes.

- One is the privilege, mother, may I have somebody to work at the hospital?

The other privilege is the legal privilege saying I don't have to disclose information, like a legal privilege with your doctor, or your priest, your minister.

The things you say to them are confidential.

- Correct, correct.

- Okay.

- So the privilege is kind of like the ability or the right to do something.

And so part of that process is applying to the hospital to show their credentials.

And then the peer review committee, one of the functions of a hospital's peer review committee, and the peer comes from it's being reviewed by the physician's peers.

Only another physician could look at what a physician is qualified to do and say they can do that or not do that.

So the peer review committee is, in part, charged with allowing a physician to apply and be granted privileges at the hospital.

The peer review committee, another function of that, is to, once a physician has privileges, then the committee looks at their quality of their care, and the quality of their medical practice, and other type of incidents that may affect patient safety.

And so the peer review committee's functions is kind of two twofold.

What I think we're gonna be talking about today is more of not when you're granted privileges to practice at the hospital, but what happens if the quality of care is being looked at by the peer review committee.

- So what's the controversy, Mr. Plakas?

- Shouldn't they be doing that?

- So the controversy, Sally, is, when a medical tragedy occurs in a hospital, does the patient and that patient's family have the right to know why?

Or, is the hospital justified in keeping secret its knowledge as to deficiencies in either its personnel or it's processes that have led to the medical tragedy in the hospital?

So that's the issue, the right to know versus the hospital's interest in keeping certain things confidential.

We say secret.

- So Chris, what is the hospital's interest in keeping it secret?

Why not just reveal the information that they learned during the peer review process?

- And I think secret is somewhat of a charged word in that something that is being held that you should be telling And you're not telling somebody else.

This privilege, this privilege of confidentiality, much in the same way as if you're my client and you tell me something, I cannot be compelled to tell what you told me to a third party without your consent.

So I have to keep secret what you as a client tell a lawyer, so if we wanna use that term.

So with respect then to confidentiality of peer review privileges and peer review committee, the Ohio Legislature already put a law in effect that says those proceedings are confidential much in the same way as the Ohio Legislature already put a law in effect that said the discussions between me and a client are confidential, or a patient and a physician.

So there's a statutory confidentiality that goes over these proceedings, and the legislature has already put that in place.

It's been in place for many decades.

All 50 states have a peer review privilege statute.

And so this is not something that's unique in the state of Ohio.

This is not something that's unique to hospitals in Northeast Ohio.

This is a common business committee that every hospital has, and that there's a privilege applied by the legislature that says the proceedings of this committee and this committee alone, and it's a very narrow set of proceedings, is confidential and cannot be used and not be discovered in a litigation proceeding, or whether it's the agreed physician who, as a result of the investigation of the peer review committee, has their privileges taken away.

The agreed physician can't get into that either necessarily through a court of law.

So all of that to say is that this privilege has already been established by the Ohio Legislature, and it's pursuant to that the hospitals operate.

- Do you think that's appropriate to continue?

What do you think about it?

They all have it, so it's okay.

- Yeah, so Chris noted that secret is a charged word.

It clearly is a charged word.

It's a charged word for patients and their families because I would suggest, Sally, that if we interviewed 100 people on the streets of this community, virtually none of them would recognize and understand what is the justification for a hospital to keep certain things secret when they relate to patient care.

And so, just because the legislature in its wisdom or the wisdom of its medical lobbyists decided to initiate peer review, that doesn't make it right.

And we know that sunlight is the best disinfectant for things that are wrong.

So why aren't we learning and exposing what the peer review committee has discovered?

How can that hurt?

So in the cases that justify this, the justification is something that, if you read it out loud, it's hard to wrap your hands around that someone would actually say that, but that's what the legislature has justified this.

And I actually- - What are the justifications?

- Well, the justification is that, and I actually have the quote here, so I'll try to summarize it.

And if I may, I'd like to actually read it.

- Sure, sure.

- Is that...

Okay.

So the justification that has been suggested, and the reason I'm reading it is to make sure I don't do injustice to it.

But even in the cases pending, including a case that's gonna go to the Supreme Court here in Ohio in the next couple weeks- - Unless this is shown on TV afterwards, which is probably more likely.

- Okay.

- And on the radio after.

- All right.

So let me read what the legislature and the courts that support the peer review statute have said.

They said that in the absence of this privilege, the absence would make participants reluctant to engage in honest criticism for fear of loss of referrals, loss of reputation, retaliation, and vulnerability to tort action.

So the first thing this says is we need the peer review secrecy because we're afraid that if doctors come into the peer review committee and provide honest criticism, they're gonna lose referrals.

So what does that mean, Sally?

That means they're gonna lose money.

And so, first of all, I know a number, and I'm sure we all know, a number of wonderful, highly motivated ethical doctors.

And I believe that virtually all of them, for patient care, would come into a peer review committee, regardless of the consequences and tell the truth.

So the peer review committee is trying to protect those few doctors that are afraid of telling the truth because they're gonna lose referrals, reputation, or be retaliated against.

I don't think that that's a legitimate justification for the secrecy of peer review.

The legislature has bought that, apparently, in almost all the states, but that doesn't make it right.

And we have to reexamine that.

And the case that's going to the Supreme Court is a very dangerous extension of the peer review privilege, and now it's trying to extend it or the hospitals are trying to extend it to young first year residents in hospitals who are in training and just learning things.

So it's a problem.

If our community knew about that, they would be up in arms.

- By the way, I did attempt to invite one of the attorneys on the other side of that case, but he must be very busy.

Perhaps he'll be able to come on our show at another time.

But you must have a reaction to what you just heard.

- Well, sure, I mean, that type of argument could be used to go against any type of confidentiality privilege that's afforded by law.

Why is the attorney-client privilege there?

Why can't you find out what your person on the other side of your case said at their lawyer if it's gonna lead to the truth?

Why is there privilege there?

Why in the medical profession, when there's a patient privilege with their physician, why is it there?

So there are certain things that the higher legislature has said these things need to be confidential.

And again, it's not as if there are medical malpractice cases that are filed, and investigated, and proceeded to trial, or settlement, or dismissal ubiquitously every day everywhere.

And the peer review privilege doesn't prevent that from occurring.

The peer review privilege doesn't stand in the way of that.

The peer review privilege statute says just these proceedings and these records reviewed by the peer review committee are confidential, but everything else is fair game and subject to discovery.

And even if something is in the peer review committee's available to another source like the medical records, then you can get it from the other source.

But the statute is written to protect the confidentiality and integrity of that process, so there can be an honest discussion about what happened.

And if there was no issue, fine.

If there was an issue, how do we correct that without the fear that, if they address the issue, they're gonna be dragged into a lawsuit and being put under a deposition and being able to describe what happened.

And so all that to say is the legislature said there's a privilege, there's a confidence, and we need to protect that confidence so that the quality of care of patients can be adequately reviewed.

- Don't you think though that investigations by employers of their employees or employers of their, doctors that may be on their panel, not necessarily employees, but who have privileges within the hospital that were using the same word two different ways, don't you think that they have the ability to ensure that the people who speak with them in these investigations are truthful, not withstanding whether or not they're protected from disclosing that information to someone who's been harmed?

- Well, sure, because what happens in the peer review committee really only affects what happens to the physician that's being looked at.

It doesn't affect the employee, or the employer or that type of thing.

They're able to, if there's some issue, file a lawsuit, to get the medical records, to look at the physician's training experience if there's some concern in that respect.

- But my point is, doesn't the hospital have the ability to obtain truthful information notwithstanding whether or not the process is privileged or not?

- Sure, and they do.

I mean, they'll do some investigation, but much in the same way as a...

If there's an incident report that's done with an attorney involved and that incident report at an employer or a manufacturing place, incident report looks at what happened and says what happened and talks to people, that can also be something that's protected and privileged too.

And again, it's not keeping it secret because you can still depose people, you can still get records, but it's protecting the investigative process, and that's what the statute is there to do.

- Is it protecting the information though?

I mean, is it protecting... Are these laws protecting the knowledge of the hospital?

- It's protecting the investigation of the hospital?

Correct.

- What do you think about that?

- I think, what I think about that, I think our society is built on truth matters.

And in every other type of tragedy or catastrophe, the public desires and has access to the investigation.

If it's an airplane crash, we have the right to know, was that pilot qualified?

Was he well-trained?

If it's a pharmaceutical issue, we have the right to go in and get the reports of all the chemists to determine, did they know about the risks involved?

In employment situations, if in fact someone is found to be a sexual harasser regardless of whether they're a priest or anybody else, we have the right to go in and get files to get to the truth.

So the truth is more important than the integrity of any investigation, and I believe doctors will tell the truth regardless of the protection of the peer review.

- You're tuned into "Forum 360."

I'm Sally Henning.

Our special guest today, Chris Huryn and Lee Plakas, super Lawyers talking about the controversy of peer review and the privilege that attaches to it, which protects hospitals from having to reveal information that they have gained in a particular way.

Did I say that right?

- It's a fair statement, yes.

- Is that a fair statement?

- Yeah.

- I interrupted you, I'm sorry.

- No.

As I said, it's been said that sunshine and sunlight are the best disinfectant because they are able to create transparency and transparency leads to the truth.

And I read the statement that the courts have tried to justify the peer review statute because they're afraid that doctors would be afraid that their honest criticism would lead to a fear of loss of referrals.

I'd like to think that the doctors that we all respect and know, they're gonna tell the truth and they don't need protection.

And if they need protection for telling the truth, then I'm not sure that that's the kind of medical system we want.

- Let me change the question a bit.

So in my research before we do the show, one of the things that I read about is some of the people who complain about peer review system are employees, and they talk about sometimes some doctors use their positions to engage in sexual harassment.

And that during the course of peer review systems, there are sometimes managers or physicians who make comments about people not because of what they're actually observing, but based upon their personal animosity, whether because the person hasn't agreed to provide them sexual advances or whatever.

And the complaint is that some women or powerless people say, "I can't even find out what was said about me, but I'm being treated differently now.

I've not been given the same assignments.

I think I'm on my way out now.

I mean help."

- But that also can also help that particular employee if that employee felt that they were the subject of sexual harassment.

And as part of a peer review committee, the peer review committee says, "Employee, please come and talk to us.

tell us what happened.

And the employee without that privilege may be concerned, "Well, I don't want to talk with you, peer review committee, because he'll find out that I did this, or she'll find out that I did this, and they will retaliate against me."

So the confidentiality also protects the people who are talking to the peer review committee.

So in that instance, that would protect that employee who was a victim of it in terms of making that report if that was part of the peer review committee's role in terms of evaluating the quality of medical care.

So I think it kind of goes both ways.

I think we could both sit here and find a situation where the peer review privilege kind of doesn't make sense in that situation or does make sense in that situation, but the bottom line is that privilege is there like any other confidentiality, like attorney-client privilege or physician patient privileges.

Why can't they an employer ask a patient's physician?

Are they really hurt?

Tell us what you really think that give us the medical records without the patient's consent.

No, there's a privilege there to keep that confidential or secret in the sense that that's been recognized and we need to keep that confidential so much in the same way.

This is a different type of privilege or confidentiality that applies to the activities of a peer review committee as opposed to the attorney-client relationship or the physician patient relationship, or the other privileges that exist in the state of the law.

- Are those other privileges being eroded?

- No, I think- - Attorney, client, and physician.

- This is the great thing about the law and what we do as lawyers, I think, is the legislature's role is to enact laws.

And the legislature decades ago said, "We wanna enact this law that talks about, that's gonna put in a peer review committee privilege and confidentiality."

And so they're very broadly worded, and then cases come along, facts come along, and then the parties get the chance to argue and apply the facts of a case to the law, and that's what a judge or a jury does in those situations.

That's what's gonna happen in this case because this is kind of an interesting...

The case that Lee was talking about, that hasn't been decided by the Supreme Court, so they're gonna apply the facts to the law.

So all that to say is they're always I wouldn't say eroded, but they're always being looked at by the courts.

- Yeah, so we certainly don't wanna have a situation where medical practices that are dangerous are hiding behind the peer review.

- [Chris] Correct.

- So what's the prescription for the future?

What prevents unnecessary litigation when you have situations where employees who are bad actors or doctors or bad actors are not being viewed?

How do we prevent the... What's the prescription to prevent bad medicine?

- The harm of a negligent medical act or failure to act is still apparent.

It's still able to be investigated by the patient's lawyers.

The medical records are there, and then those cases have an impact upon the physician, or the lawyer, or the accountant, or who's ever being looked at in that respect, but that's still there.

- So why the difference?

Why questions can be asked in this form, but not in that?

Am I asking the wrong person?

- You're asking absolutely the correct person, and I know our time is limited.

There's dozens of very interesting issues, but the one thing I wanted to point out, as Chris has said several times that this is a narrow privilege.

The hospital industry is trying to expand the privilege, and the Supreme Court case that has been referred to that's coming up is a very dangerous effort to expand the privilege to encompass the entirety of the personnel file of residents, first year residents, who are in training just learning to do things.

So when a tragedy occurs at the hands of a first year resident, does a patient or the patient's family have the right to ask why?

And do they have the right to ask, was he trained to do this particular procedure?

Why did this procedure result in someone becoming a paraplegic or in a vegetative state?

Did his supervising doctors know or not know that he had not completed these tests or had not done a good job on 'em?

Those are all questions that aren't in the medical records, but they're behind the curtain of the peer review.

We have a right, our community has a right, the patients and their families have a right to know, why did they put this first year resident on this very complex case?

Are we a bunch of guinea pigs when we go into a hospital?

- What do hospital do?

What do hospitals do to prevent having litigation on this subject?

- Well, I think the patients have a right to ask all those questions as Lee mentioned.

They absolutely have the right, and they can ask the doctor involved, and they can ask the doctor who's training the doctor, and they can ask all the people who are participating in the patient's care those questions.

The statute that we're talking about just says you can't...

If that question was asked by the peer review committee, you just can't find out, you just can't get the peer review's records as to that particular question, but that's available from all those other sources.

Getting to your question, Sally, what can patients or what can hospitals do to- - Well, let me also ask you.

What advice you might have for young people who might wanna go into law and get involved in these difficult discussions?

- I think you have to have a passion to learn.

I think you have a passion to advocate, and I think you wanna have a passion to support the law and support your clients.

- And I think you have to channel what Sally said.

Just because a law is on the books, just because it's been done a certain way for a period of time, doesn't make it right?

The law is a living, breathing organism, and we are endowed as attorneys with the power to change things for the good, to reexamine things, and to say, "You know what, this isn't right, and it's not resulting in the right things."

- Do you have a formula, something that hospitals could do to stay outta trouble?

- Yeah.

Sunshine.

- Sunshine?

- Yeah.

- I think hospitals spend an inordinate amount of time, and energy, and resources to make sure that the people who are practicing in their facilities are trained and are competent.

Everyone's goal is quality medical care, and that's met in several different ways as part of the industry.

- And if they were so dedicated to that goal, then there's nothing to hide, and sunshine would show which hospitals are in fact dedicated to that and which doctors have the courage to stand up and say, "We need to do a better job, or this young man or woman isn't ready to do this procedure."

- You've been tuned into "Forum 360" today.

Our special guest today, super lawyers Chris Huryn and Lee Plakas.

On behalf of "Forum 360," I'm Sally Henning.

(bright music) - [Announcer] "Forum 360" is brought to you by John S. and James L. Knight Foundation, the Akron Community Foundation, Hudson Community Television, the Rubber City Radio Group, Shaw Jewish Community Center of Akron, Blue Green, Electric Impulse Communications, and "Forum 360" supporters.