The absolute nature of discovery immunity for the peer review and credentialing process under Chapter 395 of the Florida Statutes was reinforced in a new appellate court opinion. The Fourth District Court of Appeal reversed the Seventeenth Circuit in South Broward Hospital District v. Feldbaum, which held that discovery immunity was waived upon disclosure. The Fourth DCA ruled instead that “unlike other privileges,” the issue is not confidentiality but immunity from use. This underscores the importance with which the courts view the public policy objective of self-regulation in the medical field.

In Feldbaum, a suspended doctor sued South Broward Hospital District after the hospital’s Credentials Committee and Medical Executive Committee rejected his application for reinstatement, even after he attended a fit-for-duty provider. The doctor sought all minutes of the Credentials Committee and Medical Executive Committee, all correspondence relating to his suspension, and all communications between the hospital and the fit for duty provider. The trial court issued an interlocutory order determining the Chapter 395 discovery immunity was waived when the hospital disclosed records relating to the peer review and credentialing process to the suspended doctor and his attorney.

Writing Per Curiam, the Fourth DCA determined that the plain text of Section 395.0193(8) prevents investigations, proceedings, and records of the peer review process from being used in discovery. The statute does not suggest disclosure waives discovery immunity and the court declined to give it that effect. The court further highlighted the “nearly identical discovery immunity” provided to both peer review and credentialing in 395.0193(8) and 395.0191(8), respectively. Taken together, this means compelling discovery of either peer review or credentialing records would create irreparable harm even if the records were disclosed previously. The immunity conferred in Chapter 395 is broad and requires more than disclosure to waive it. 

For hospitals, this case signifies that peer review and credentialing committees have a high degree of deference. For doctors who wish to challenge their suspensions, this case suggests their recourse is limited. Suspended doctors will not be able to introduce the minutes from these committees to bolster a claim that their suspension is about something other than patient safety.

*This article was co-written with Joseph Tracy, a Summer Associate for RumbergerKirk, class of 2021