On Nov. 22, 2005, Hayley Tindall arrived at the Piedmont Medical Center in York County to have a baby girl. She planned to name her Daphne.
It was Tindall’s second child, and the pregnancy had been normal. But something went wrong. Doctors gave her too much Pitocin, causing her uterus to rupture and killing Daphne, Tindall later would allege in court documents. While Tindall survived, at 24, she never again would have children.
Tindall sued the hospital and her doctor. And because of a loophole in state law, a judge ordered the hospital to release its peer review of what went wrong in Tindall’s case – one of at least three recent statewide cases where that has happened.
Last month, the state House of Representatives voted 110-0 to make sure that never happens again, approving a bill that would close that loophole.
The bill has the support of hospitals and doctors. But it also has the backing of trial attorneys – including Randy Hood, the attorney who represented Tindall and the president of the S.C. Association for Justice. “We all have one common goal, and that is to save lives and to make South Carolina safer for patients,” Hood said.
But the proposal has run into a roadblock in the Senate.
The Senate Medical Affairs Committee approved a similar bill, but state Sen. Gerald Malloy, D-Darlington, has objected to it on the Senate floor. That means the Senate cannot discuss the bill unless they set it for special orders, which requires a two-thirds vote.
Malloy, an attorney, said he is not trying to block the bill. He just wants to make sure he has time to review it thoroughly. “I’m not comfortable with what I see being passed throughout the body now,” he said. “The Senate is supposed to be a deliberative body. We need to take our time and take a look at it.”
Advocates of the proposed law say releasing peer reviews is dangerous, undermining the point of those reviews – candid criticism from doctors and hospital staff in an attempt to learn from, and prevent repeating, mistakes.
But when peer-review documents have been released as part of a S.C. lawsuit, they do not appear to have much effect.
In Tindall’s case, her attorney said the documents were nothing “but a recitation of the medical records.” The hospital settled with Tindall for an undisclosed amount, but a jury sided with the doctor.
In two other cases:
• The Loris Community Hospital settled with Terri Hinson for an undisclosed amount after doctors left a sponge in her following a surgery. A trial against Hinson’s doctor is pending.
• Trident Medical Center in Charleston agreed to pay Serena Thigpen $280,000 after her son, Trevor Beltz, died following complications during birth. But a jury sided with Thigpen’s doctor after a trial.
Hospital officials say the lack of impact on verdicts, when a peer review is disclosed, is not the point. Hospitals use the meetings to learn and help make policy decisions.
‘Learn from their mistakes’
Starting soon, the reviews also could determine how much doctors and hospitals are paid.
Beginning this year, the agency that oversees South Carolina’s Medicaid program will set aside an extra $15 million in incentives for hospitals and doctors, according to Tony Keck, director of the S.C. Department of Health and Human Services.
Keck said those incentives could pay doctors and hospitals more for reducing obesity, hospital readmissions and premature births. Peer review meetings will be key to getting the incentives, he says.
“One of the way hospitals improve is to learn from their mistakes,” Keck said. “They have to be able to have those conversations to police themselves in a very frank way.”
The incentives soon could extend beyond Medicaid.
Scott Hultstrand, an attorney with the S.C. Medical Association, which represents doctors, said he expects private health insurance companies to begin paying hospitals and doctors based on the quality of the care that they deliver too.
“Anytime you are being paid on quality and outcomes, you ensure you are putting a lot of focus on your quality and your outcome,” Hultstrand said. “These type of conversations in peer review help move that along.”
The key to those meetings is ensuring doctors and other medical professionals are able to speak freely without worrying about a lawsuit, said Ralph Barbier, an attorney with the Columbia-based Nexsen Pruett law firm, which advises hospitals on peer reviews.
“A lot of times, they are investigating one of their (colleagues),” he said. “We can say to people, ‘Look it’s confidential. You can be candid and, as long as you are acting in good faith and not acting malicious, you have immunity from suit.’ ”
South Carolina already has a law making hospital peer-review documents private. But the law only applies to the “committee of a medical staff of a licensed hospital.” Courts have interpreted that to mean only doctors can be on the peer-review committee.
But most review committees also include nurses, administrators and other non-doctors. Because of that, judges have ruled any documents those committees produce are not covered under the law.
The proposed bill would change that, allowing non-doctors to work on the committees.
Trial attorneys did get one concession: witness statements.
If a nurse or a doctor gives a written statement to the review committee and that statement conflicts with that person’s testimony in a malpractice trial, then the peer-review documents would not be covered under the law and would become public.