are abrogated, then Amendment 7 information will be available to persons who are
not "patients" as defined by Amendment 7. By making the records discoverable,
co-defendants of the producing hospital will have access to the records even if they
do not meet the definition of a "patient" under Amendment 7. Clearly, such a result
is contrary to the plain language of Amendment , which grants access to such
records only to "patients" and says nothing at all about discovery in legal
Allowing persons who are not "patients" to gain access to records of adverse
medical incidents, including records of underlying peer review records, will
undermine the self-policing process that hospitals use effectively to improve care.
Removing the protections of confidentiality will have a chilling effect on the
willingness of doctors and other health care professionals to participate in the peer
review process. An interpretation that allows persons who are not patients to
obtain records of adverse medical incidents directly conflicts with the plain
language of the Amendment.
Moreover, if a patient has a right to Amendment 7 information with or
without a lawsuit, what purpose is served by making the information
"discoverable" in a legal proceeding? Indeed, in some respects, tying access to
6 With all due respect, the reference by the court below to formal or informal requests does not compel an interpretation that "formal" means a discovery request in a lawsuit. "Formal" could just as easily mean a letter and "informal" could mean a telephone call or in-person request.