Discovery of Hospital Incident Reports: Prepare for In Camera Review; Discovery Likely

In most medical malpractice cases related to treatment in a hospital setting, a fairly standard interrogatory posed by plaintiffs to hospitals is a request for the production of any incident reports created in relation to the plaintiffs’ treatment. Courts have continued to resist advocates of protecting hospital incident reports from discovery. The primary advocate of shielding incident reports from discovery is, not surprisingly, the AMA. The AMA filed amicus briefs in recent cases before the Kentucky and Utah Supreme Courts stating its position that all documents submitted for purposes of peer review should be protected from legal discovery. The past year’s three state Supreme Court decisions, out of Kentucky, Utah, and North Carolina, addressing the discoverability of incident reports focused on three distinct aspects of this particular issue.

Medical malpracticeThe Kentucky decision, Tibbs v. Bunnell, 448 S.W.3d 796 (Ky. Aug 21, 2014), as corrected (Sep 10, 2014), rehearing denied (Dec 18, 2014), addressed the interoperability of state law and the federal privilege for patient safety work product created by the Patient Safety and Quality Improvement Act of 2005 (PSQIA), 42 U.S.C.A. § 299b–21 et seq. Specifically, the court held that data collected, created, maintained, and utilized as mandated by the Commonwealth of Kentucky as part of its regulatory oversight of its healthcare facilities did not acquire a federal privilege by virtue of the healthcare provider’s act of putting them solely into a Patient Safety Evaluation System (PSES) repository for the use of the healthcare provider’s PSES and its Patient Safety Organization (PSO). Thus, information normally contained in an incident report was not privileged under PSQIA and may be discovered, following an in camera review, and its information compelled. To the extent the information normally contained in these state-mandated incident reports was intermingled with other material properly privileged under PSQIA, they may be separated from each other by the trial court in camera. The AMA and the Kentucky Medical Association filed an amicus brief in the Kentucky Supreme Court. The brief urged recognition and an expansive reading of the Patient Safety Act privilege.

The Utah decision, Allred v. Saunders, 342 P.3d 204 (Utah Oct 21, 2014), concerned the legislature’s amendment to rule 26 of the Utah Rules of Civil Procedure during the discovery phase of the instant case. The Utah Legislature amended rule 26 by a two-thirds majority vote to add a provision creating both peer-review and care-review privileges and extending the scope of those privileges to the discovery process. The relevant portion of the amended rule states:

Privileged matters that are not discoverable or admissible in any proceeding of any kind or character include all information in any form provided during and created specifically as part of a request for an investigation, the investigation, findings, or conclusions of peer review, care review, or quality assurance processes of any organization of health care providers … for the purpose of evaluating care provided to reduce morbidity and mortality or to improve the quality of medical care, or for the purpose of peer review of the ethics, competence, or professional conduct of any health care provider.

2012 Utah Laws 2551 (codified at Utah R. Civ. P. 26(b)(1)).

The Utah Supreme Court held that the revised rule of civil procedure was a valid source of evidentiary privilege with regard to the discoverability of the physician’s credentialing file and the incident file, the determination of whether in camera review of purportedly privileged documents was necessary was within the sound discretion of the trial court after it considered the foundational material provided by the party seeking to assert the privilege, and the court clarified the procedure to be followed by the trial court on remand when it considered the propriety of conducting the in camera review. The AMA, along with the Utah Medical Association filed an amicus brief in support of the doctor and hospital.

In the most recent case, Hammond v. Saini, 766 S.E.2d 590 (N.C. Dec 19, 2014), the North Carolina Supreme Court held that documents created by the county health authority after a surgical fire at a county facility were not shielded from discovery. After an operating room fire that injured a patient, the county health system established a Root Cause Analysis Team (“RCA Team”). The defendants argued that the RCA Team constituted a medical review committee pursuant to N.C.G.S. § 131E–76(5). They contended that as a result, the “Quality Care Control Reports” (“QCC Reports”), the county health system’s risk manager’s notes, and the “Root Cause Analysis Report” (“RCA Report”), which allegedly were considered or produced by the RCA Team, were protected by N.C.G.S. § 131E–95(b), which shields from discovery and introduction into evidence in certain civil cases “[t]he proceedings of a medical review committee, the records and materials it produces and the materials it considers.” The North Carolina Supreme Court found that the affidavit from the county health system’s risk manager was insufficient to demonstrate that the RCA Team met the criteria for a medical review committee as defined by N.C.G.S. § 131E–76(5)(c). The RCA Policy was also insufficient to demonstrate the applicability of N.C.G.S. §§ 131E–76(5) and 131E–95(b), in part, because the court found that it did not appear that the RCA Policy was adopted by the governing board or medical staff of the county health system.

All three cases indicate the judiciaries’ reluctance to shield incident reports as a broad category. Even in Utah, where the statutory protections seem quite strong, the court emphasized the importance of the trial court’s in camera review to sort protected information from discoverable information.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details, see the Scalpel Weekly News, January 5, 2014.

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For more details on Tibbs v. Bunnell, 448 S.W.3d 796 (Ky. Aug 21, 2014), as corrected (Sep 10, 2014), rehearing denied (Dec 18, 2014), see the Scalpel Weekly News, September 1, 2014.

For more details on Allred v. Saunders, 342 P.3d 204 (Utah Oct 21, 2014), see the Scalpel Weekly News, November 3, 2014.

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