The Oxford Dictionary defines peer review as “a judgment on a piece of scientific or other professional work by others working in the same area.” It is a commonly used procedure with a variety of scientific and medical matters.
“Peer review” means an evaluation by two or more physicians licensed under the same authority and with the same or similar specialty as the physician under review, of the appropriateness, quality, and cost of health care and health services provided to a patient, based on medically accepted standards.
There is little other jurisprudential instruction to explain the pertinence of peer review in workers’ compensation cases.
Last week I received a “Peer Review” report from a doctor hired by the workers’ compensation insurance company in one of our cases. In the doctor’s opinion, a shoulder surgery recommended by our client’s authorized doctor “does not meet established treatment standards of medical necessity.” The peer review report was generated in response to a Petition for Benefits we had filed seeking authorization of the surgery. A few days later the workers’ compensation carrier filed a formal response to the Petition for Benefits in which it agreed to authorize the surgery. This is not the first time I’ve experienced a similar about-face involving peer review.
I don’t know why the carrier went to the trouble and expense of this so-called peer review. First, the statute requires the review to be done by “two or more physicians.” This review was done by one physician. Next, while 440.13(r) and (s) express an interest in “Utilization control” and “Utilization review,” neither the statute nor case law instruct how or even whether peer review functions to address utilization concerns or disputed medical benefits.
Peer review does not appear to fit into the scheme devised for resolving workers’ compensation disputes. Using our shoulder surgery case as an example, the carrier did not need a peer review opinion in order to contest the medical necessity of the procedure. Moreover, even an opinion complying with the statute — i.e., given by “two or more physicians” — would probably not be admissible in a court proceeding concerning whether the procedure will be authorized. For one thing, peer review opinions, which are employed as a tool in many different types of matters, are privileged and barred from use in legal proceedings. See Holly v. Auld, 450 So.2d 217 (Fla. 1984); South Broward Hospital District v. Feldbaum, 321 So.3d 828 (Fla. 4th DCA 2021); Lingle v. Dion, 776 So.2d 1073 (Fla. 4th DCA 2001); and Florida Statutes 766.101 and 395.0193. Second, section 440.13(5)(e) limits whose medical opinions may be considered by the judge of compensation claims (JCC):
No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.
Peer review does not qualify as one of these experts.
While 440.13(5)(e) would seemingly prohibit the actual peer review opinion from coming into evidence, Florida’s Evidence Code might allow the import of the opinion to get before the JCC. Florida statute 90.704 provides as follows:
Basis of opinion testimony by experts.—The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
Under 90.704, the party wishing to make the peer review opinion known, if only by inference, will furnish the report to one or more of the experts authorized to testify under 440.13(5)(e). The expert will then be asked to name the things he or she relied on as the basis for the opinions. If the expert references the peer review opinion, the JCC will naturally infer that the peer review opinion resembles the testifying expert’s opinion. That could be a harmful inference.
The opponent of this procedure should object on the following grounds:
- The peer review report is privileged and barred from use in all legal proceedings.
- Referencing the peer review in this manner is a backdoor attempt, in violation of 440.13(5)(e), at putting the opinion before the court.
- The peer review evidence is cumulative.
Since the JCC might rule that the testifying expert’s reliance on the peer review report was improper, it is important during cross-examination of that expert or the court-appointed EMA to establish how much reliance there was on the opinion. If there was meaningful reliance and the JCC later finds that using the peer review opinion was improper, the expert’s opinion has been significantly undercut. When it involves an EMA, this might be enough to overcome the presumption of correctness. See 440.13(9)(c)(“The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.”)
Another argument to make is that the peer review expert is really the party’s IME under 440.13(5)(e), and, therefore, no other IME for that party is allowed. In pertinent part, 440.13(5)(a), provides as follows:
The employer and employee shall be entitled to only one independent medical examination per accident and not one independent medical examination per medical specialty.
Locking the carrier into the peer review as its IME is a sound approach if the peer review is relatively weak and most likely less damaging than a dedicated IME opinion.
For the carrier to obtain an alternative IME, it must demonstrate at least one of these elements:
- The examiner is not qualified to render an opinion upon an aspect of the employee’s illness or injury which is material to the claim or petition for benefits;
- The examiner ceases to practice in the specialty relevant to the employee’s condition;
- The examiner is unavailable due to injury, death, or relocation outside a reasonably accessible geographic area; or
- The parties agree to an alternate examiner.
Contact us at 305-758-4900 or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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