Courts have been reluctant to shield incident reports from discovery. In 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. The court emphasized the importance of the trial court’s in camera review to sort protected information from discoverable information. “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.” See the Medical Law Perspectives March 2, 2015, Blog: Discovery of Hospital Incident Reports: Prepare for In Camera Review; Discovery Likely.
On April 21, 2105, the court in Krusac v. Covenant Medical Center, Inc., 2015 WL 1809371 (Mich., April 21, 2015), however, put up the shield again and held the peer review statutes did not contain an exception for objective facts contained in an otherwise privileged incident report, and that the statutes made privileged all records, data, and knowledge collected for or by a peer review committee in furtherance of its statutorily mandated purpose of reducing morbidity and mortality and improving patient care. The court determined that objective facts gathered contemporaneously with an event contained in an otherwise privileged incident report were not discoverable.
The issue in Krusac was whether the trial court erred by ordering production of the objective facts contained in the incident report authored by an employee of the defendant. The trial court’s decision was based on Harrison v. Munson Healthcare, Inc., 304 Mich.App 1, 851 N.W.2d 549 (2014), which held in part, that the peer review privilege does not protect objective facts gathered contemporaneously with an event. The Supreme Court of Michigan determined, however, that the portion of Harrison on this issue was wrongly decided. Therefore, the trial court erred by relying on Harrison to order production of the objective-facts portion of the incident report. The Supreme Court vacated the Krusac trial court’s order and remanded for further proceedings.
In this case, an 80-year-old woman underwent a cardiac catheterization. Following the procedure the woman rolled off the operating table and a nurse and lab technician caught the woman, lowering her to the floor. Shortly after the surgery and fall, the woman died.
The personal representative of the estate filed a medical malpractice complaint against the hospital. The complaint alleged that the woman died as a result of injuries sustained from the fall.
An incident report had been filed by the nurse who helped catch the woman, which was submitted to her supervisor. The incident report was identified during discovery. The estate filed a motion in limine on the eve of trial asking the court to conduct an in camera inspection of the incident report and provide the estate with the facts contained in it. Relying on Harrison, the plaintiff argued that the facts were necessary to cross-examine the hospital staff, and that it would be unethical for the defendant to offer a defense inconsistent with the facts contained in the report. The defendant responded that the peer review privilege under §§ 20175(8) and 21515 protected the report from discovery.
The Saginaw Circuit Court ordered the hospital to produce a copy of the report for in camera review. After reviewing the report, the trial court issued an order requiring the hospital to provide the estate with the first page of the incident report, which contained only objective facts, as the court’s concluded, based on the Harrison case, that objective facts gathered contemporaneously with an event do not fall within the definition of peer review privilege.
The Supreme Court of Michigan reversed the trial court’s order holding that the peer review statutes did not contain an exception for objective facts contained in an otherwise privileged incident report determining that both statutes, §§ 20175(8) and 21515, protected the “records, data, and knowledge” collected for or by a peer review committee. The court reasoned that because the ordinary meanings of “record,” “data,” and “knowledge” plainly encompass objective facts, the objective facts were subject to the peer review privilege. The court noted that the scope of the privilege was not without limit, however. The privilege applies only to records, data, and knowledge that are collected for or by the committee under §§ 20175(8) and 21515 for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The trial court erred in its analysis based on Harrison and prior case law of the scope of the peer review privilege.
One of the most import points the Michigan Supreme Court made was that mere submission of information to a peer review committee does not satisfy the collection requirement so as to bring the information within the protection of the statute. The court noted that when deciding whether a particular committee was assigned a review function so that the information it collected is protected, a trial court may wish to consider the hospital’s bylaws and internal regulations, and whether the committee’s function is one of current patient care or retrospective review. The Supreme Court held that §§ 20175(8) and 21515 make privileged all records, data, and knowledge collected for or by a peer review committee in furtherance of its statutorily mandated purpose of reducing morbidity and mortality and improving patient care, including objective facts gathered contemporaneously with an event contained in an otherwise privileged incident report. The Supreme Court of Michigan reversed the trial court’s order that the hospital produce the objective facts found in the incident report, and remanded for further proceedings.
See: Krusac v. Covenant Medical Center, Inc., 2015 WL 1809371 (Mich., April 21, 2015) (not designated for publication).
In a slightly earlier case, Tibbs v. Bunnell, 448 S.W.3d 796 (Ky. Aug 21, 2014), as corrected (Sep 10, 2014), pet. for cert. filed 83 USLW 3772 (Mar 18, 2015), the Supreme Court of Kentucky decided incident report discoverability differently and required an in camera review.
In Tibbs, the Supreme Court noted that occurrence or incident reports are to be used by hospital employees in the ordinary course of business when significant events occur to document their experience and observations for subsequent review by the hospital’s risk management staff in assessing legal liability issues, and as such, they are not patient records, but, rather, hospital records, which are generally discoverable. As a matter of first impression, the court held the scope of the privilege under the Patient Safety and Quality Improvement Act (PSQIA) was not limited to documents containing self-examining analysis, but rather was limited to patient safety work product, as established by the PSQIA. The court found the statutory language of the PSQIA extended the privilege to the types of information and data underlying, supporting, or triggering the self-examining analysis. And, to the extent that the post-incident information reported by the hospital surgical nurse in this case regarding the death of the patient following elective spine surgery was normally contained in an incident report, the information was not patient safety work product privileged under the PSQIA and that information was discoverable following an in camera review. The court reasoned that even though the information was filed and stored in a database ostensibly dedicated to the hospital’s patient safety evaluation system, its collection, creation, maintenance, and utilization was mandated by the Commonwealth as part of its regulatory oversight of healthcare facilities.
In the Tibbs case the patient’s estate filed a wrongful death and medical malpractice action against the physicians stemming from the patient’s death following elective spine surgery. The Circuit Court denied the physicians’ motion for protection concerning the alleged post-incident or event report based on privilege under the PSQIA. The physicians petitioned for a writ of prohibition to prevent the trial court from ordering disclosure of the report.
During discovery, the patient’s estate requested the following:
INTERROGATORY NO. 26: Please state whether any investigation, including but not limited to peer review and/or incident reports, has been conducted upon the medical treatment, surgery or care rendered to the Plaintiff, by you, or anyone at your direction or control, and if so, by whom, when and the results thereof. If yes, produce such documents.
REQUEST NO. 7: Please produce any and all documents generated by any investigation, including but not limited to, peer review and/or incident reports of the events of [date] through [date], as identified in your answer to interrogatory No. 26.
The appellants moved for a protective order concerning the report, asserting that the only post-incident report that exists was a “report created through [name] Patient Safety Evaluation System” and, thus, it was protected from discovery by the new federal privilege for patient safety work product created by the PSQIA. The court noted that peer review documents and incident reports are not otherwise privileged in malpractice litigation in Kentucky.
The Kentucky Supreme Court considered the narrow issue of whether the Court of Appeals erred in limiting the privilege to documents employing a “self-examining analysis” rather than the statutory language used in the PSQIA. And, if the Court of Appeals erred, the secondary question was: what is “patient safety work product”? The Supreme Court reversed the opinion of the Court of Appeals to the extent it limited the scope of the PSQIA’s privilege to documents containing a “self-examining analysis.” It also held that information normally contained in an incident report is not privileged under the PSQIA and may be discovered, following an in camera review, and its information compelled, and noted that to the extent the information normally contained in the state-mandated incident reports is intermingled with other material properly privileged under the Act, they may be separated from each other by the trial court in camera. Therefore, the court reversed the opinion of the Court of Appeals regarding the scope of the privilege under the PSQIA, and remanded the matter to the trial court for in camera review, consistent with its opinion.
See: Tibbs v. Bunnell, 448 S.W.3d 796 (Ky. Aug 21, 2014), as corrected (Sep 10, 2014), pet. for cert. filed 83 USLW 3772 (Mar 18, 2015).
Because Hammond, Krusac, and Tibbs all dealt with hospital incident reports, and were all decided based on different reasoning, the discoverability of the contents of hospital incident reports can be considered as not fully determined, but an in camera review is likely.
See also: Department of Financial and Professional Regulation v. Walgreen Co., 2012 IL App (2d) 110,452 (Ill.App. 2 Dist. May 29, 2012) (a pharmacy corporation’s vice-president’s affidavits, attached to the pharmacy corporation’s motion to dismiss and response to the Department of Financial and Professional Regulation petition to enforce administrative subpoenas, established that quality improvement reports, which the pharmacy created under its tracking and reporting system, were privileged under the Patient Safety and Quality Improvement Act of 2005; the vice-president stated in her affidavit that the pharmacy did not create, maintain, or otherwise have in its possession any incident reports pertaining to any medication error other than the quality improvement report, and also stated that the reports were transmitted to a federally certified patient safety organization).
By Monique C.M. Leahy, JD, and the experts and editors at Medical Law Perspectives.
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See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure.