A heart surgeon performed a cardiac catheterization on an 80-year-old woman. Immediately following the procedure, the woman began moving her legs around and rolled off the operating table. A nurse and lab technician caught the woman and lowered her to the floor. At that time, the woman denied hitting her head. Later, she complained of neck and back pain from the fall. The CT scan performed later that day showed no evidence of injury from the fall. 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.
During discovery, it became known that the nurse who helped catch the woman had filled out an incident report shortly after the event and submitted it to her supervisor. 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. 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 based on its conclusion that objective facts gathered contemporaneously with an event do not fall within the definition of peer review privilege. The Court of Appeals of Michigan granted immediate consideration, but denied the hospital's application for leave to appeal for failure to persuade the court of the need for immediate appellate review and denied the hospital’s motion to stay the proceedings.
The Supreme Court of Michigan reversed. The court held that the peer review statutes did not contain an exception for objective facts contained in an otherwise privileged incident report.
The peer review statutes did not contain an exception for objective facts contained in an otherwise privileged incident report. Both statutes, §§ 20175(8) and 21515, protected the “records, data, and knowledge” collected for or by a peer review committee. Because the ordinary meanings of “record,” “data,” and “knowledge,” plainly encompass objective facts, the court held that objective facts were subject to the peer review privilege. The court noted that the scope of the privilege was not without limit. The privilege only applies 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. 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. In deciding whether a particular committee was assigned a review function so that information it collected is protected, the 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 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.
See: Krusac v. Covenant Medical Center, Inc., 2015 WL 1809371 (Mich., April 21, 2015) (not designated for publication).
See the Medical Law Perspectives March 2, 2015, Blog: Discovery of Hospital Incident Reports: Prepare for In Camera Review; Discovery Likely