Incident Reports: How to avoid plaintiff attorneys using them against you

Robert A. Bitterman, MD, JD, FACEP, Contributing Editor

Many health care providers harbor the delusion that hospital 'incident reports,' or 'occurrence screens,' are privileged and protected from discovery or admission as evidence against them in malpractice litigation. A rash of recent court decisions dispels that notion, and understanding the underpinnings of the courts' reasoning may help hospitals and emergency departments fashion procedures that circumvent the disclosure or admissibility of these materials in civil litigation.

Incident reports not protected under state peer-review statutes

Riverside Hosp. Inc. v. Johnson.1 Elaine Johnson, 79 years old and suffering from known lymphoma, was admitted to Riverside Hospital for new-onset altered mental status and generalized weakness. The initial nursing assessment evaluated Ms. Johnson's risk of falling, based on pre-defined factors. The nurse did not identify Ms. Johnson as a high fall risk patient, and consequently did not initiate the hospital's fall prevention procedures for Ms. Johnson. Shortly after admission, however, Ms. Johnson fell in the hallway outside her room and fractured her hip. She died a month or so later due to her lymphoma (not from complications of the fractured hip).

The family sued the hospital and the nurse, seeking $1 million in compensatory damages and $350,000 in punitive damages, for failure to accurately assess Ms. Johnson's risk of falling and failure to utilized appropriate measures to prevent her from falling, such as restraints, bottom bed rails, a bed check alarm, or a prompt and reliable nurse call system.1

The nurse stated she placed a call bell within Ms. Johnson's reach and that the top rails were in place on the bed. She did not install a bed alarm, which would have sounded had the patient gotten out of bed unassisted. Instead, she told Ms. Johnson not to leave the bed without assistance and to use the call system to summon help when getting up.

After the fall, the nurse completed an incident report which indicated the date, place, and time of the fall; the severity of the fall; the facts of the fall; whether the patient was aware of the fall and her reaction to it; and her status before the fall, including the use of any restraints, side rails, or call bell. It also included an entry with nursing conclusions regarding the patient's abnormal mental status, state of confusion, and unsteady gait. The court allowed the incident report to be presented to the jury as evidence for the plaintiff against the hospital and the nurse, and the jury returned a verdict in favor of the family for $1million.

On appeal to the Supreme Court of Virginia, the hospital objected to the trial court admitting the incident report into evidence, claiming that the report was a 'Quality Care Control Report' (QCCR), part of the hospital's quality control process, and, therefore, privileged and exempt from disclosure under the states' peer review statutes.1,2

The family replied that the QCCRs were actually routine accident reports that were designated as quality care control documents in an attempt to invoke the privilege afforded under Virginia law.3 Such information, the family argued, should not be entitled to the privilege under the law merely because it may be ultimately reviewed by a medical staff, quality assurance, peer review, or other type of committee identified in the statute.2,3

The court scrutinized two sections of the Virginia Peer Review statute in considering its decision:

First, the primary protection section, which states:

"The proceedings, minutes, records, and reports of any medical staff committee, utilization review committee, … quality assurance, quality of care, or peer review committee, together with all communications, both oral and written, originating in or provided to such committees … are privileged communications which may not be disclosed or obtained by legal discovery proceedings unless a circuit court, after a hearing and for good cause … orders the disclosure of such proceedings, minutes, records, reports, or communications.3

The court then noted that the incident report at issue was not a document generated by a peer review or other quality care committee referred to in the statute; therefore, it was not a proceeding, minutes, report, or other communication "of" or "originating in" such committees. Thus, the question became whether the incident report qualified for the privilege because it was "communications … provided to" such peer review or quality care committees. It would appear this language provides protection to the hospital's QCCRs if they are included in the peer review process; however, another section of the statute contains an exception clause:

"Nothing in this section shall be construed as providing any privilege to health care provider … medical records kept with respect to any patient in the ordinary course of business of operating a hospital … nor to any facts or information contained in such records."4

Indeed, the hospital's director of risk management had testified that the QCCR was a report that the nurse prepared "in the course of her job," and that a QCCR would be completed for all falls regardless of whether there was an injury or whether litigation was expected. The director also stated that QCCR's were generated for the purpose of "improvement efforts" and were typically discarded after 30 days.1

However, in this case the hospital retained the QCCR describing Johnson's fall specifically because it anticipated litigation would ensue, and it argued that the information on the QCCR was a 'qualitative analysis' of Johnson's fall that should be protected by the statute. The plaintiffs claimed the QCCR did not contain any qualitative information about the incident, only the 'factual circumstances' of the fall.1

The court quoted itself in reviewing the purpose of the privilege:

"The obvious legislative intent [of the statute] is to promote open and frank discussion during the peer review process among health care providers in furtherance of the overall goal of improvement of the health care system. If peer review information were not confidential, there would be little incentive to participate in the process."5

It then stated that it is the deliberative process and the conclusions reached through that process that the legislature sought to protect, not the facts which gave rise to the issue.6

The court determined that the QCCR, or incident report, was a written documentation of the circumstances of Johnson's fall kept in the normal course of business — a factual recitation of a fall that occurred during Johnson's hospitalization and the immediate action taken when Johnson was found on the floor. The court stated that "factual patient care incident information does not contain or reflect any committee discussion or action by the committee reviewing the information and is not the type of information that must 'necessarily be confidential' to allow participation in the peer or quality assurance review process." Instead, it decided that such information is the type contemplated by the exception clause of the statute, which the legislature specifically intended to not be within the scope of those items entitled to the privilege under the first part of the statute.4

The court felt that this limitation on the application of the privilege was consistent with preserving the confidentiality of the quality review process while allowing disclosure of relevant information regarding specific patient care and treatment.

In summary, the Virginia Supreme Court held that incident reports presented to the hospital's quality control committee were not privileged under the states' peer review statutes because they were factual information collected in the ordinary course of business and operations of the hospital.1

Incident reports not protected under attorney-client privilege in anticipation of litigation

Long v. Women and Infant Hospital of Rhode Island.7 In this wrongful death action, the plaintiff parents filed a motion to compel the hospital to produce an occurrence screen that was prepared by a nurse after their prematurely-born son died during treatment in the hospital's neonatal intensive care unit.

The hospital argued that its occurrence screens were protected from discovery under the attorney-client privilege because they were made in anticipation of litigation, stating:

"It is hospital policy not to produce these [occurrence screens] inasmuch as they are made in anticipation of litigation. It is believed that suits are brought many times just when there is an unfortunate outcome without any malpractice."7

The plaintiffs contended that the occurrence screen was not privileged because such reports are prepared routinely and in the ordinary course of business.8

Counsel for the hospital countered, stating that "we only fill this form out for unusual circumstances not what we would see in the normal course of business … "7 But the court noted that the hospital completed the occurrence screens for incidents where no injury whatsoever resulted, and in such situations it would be highly unlikely that any litigation would ensue, undermining the hospital's assertion that the occurrence screens are prepared in contemplation of litigation. The court ordered the hospital to provide a copy of the occurrence screen to the plaintiffs.7,9,10

Incident reports not protected under federal peer review statutes

Atteberry v. Longmont United Hospital.11 Scott Atteberry arrived in Longmont United Hospital emergency room in hypovolemic shock after a motorcycle accident. The emergency physician and a trauma surgeon treated Mr. Atteberry in the ED for 3 hours. The surgeon then attempted to transfer him via helicopter to a major trauma center in Denver, but he died in route, allegedly from internal hemorrhaging.

Scott's mother sued the hospital in state court under the Emergency Medical Treatment and Active Labor Act (EMTALA).12 She claimed that the hospital failed to stabilize her son's emergency medical condition (EMC), failed to provide medical treatment to minimize his risks of transfer, failed to certify in writing as required by the law that the benefits of transfer outweighed the risks of transfer (which the defendant admitted),13 and transferred him in an unstable condition in violation of the act.11 She also filed a state law claim for professional negligence against the trauma surgeon for failing to take her son to the operating room to stop his bleeding and for transferring him in an unstable condition. The hospital removed the case out of state court into federal district court.11,14

At issue in this case was whether the plaintiff could compel the hospital to produce any quality assurance reports, peer review reports or morbidity/mortality reports related to Mr. Atteberry's care at Longmont hospital.11

The hospital objected to producing the materials, asserting that the requested information was protected from discovery by the federal Health Care Quality Improvement Act (HCQIA),15 the Colorado state peer review privilege,16 and a number of other privileges.17

Federal Health Care Quality Improvement Act (HCQIA). The court then addressed whether the asserted privileges applied. It first summarily dismissed the HCQIA defense, noting that the courts repeatedly have held that HCQIA does not create a federal statutory privilege and that there is no historical or statutory basis for a peer review materials privilege.18 It cited one illustrative example:

"The federal Health Care Quality Improvement Act of 1986 provides qualified immunity for persons providing information to a professional review body regarding the competence or professional conduct of a physician.19 It also established confidentiality for information reported under the act, but did not establish confidentiality for peer review records or protect peer review records and materials from discovery and court subpoena. The absence of such a privilege in this statute is evidence that Congress did not intend these records to have the level of confidentiality and protection advanced by the hospitals and provided in the state statute."20

And then the court repeated an oft-cited quote in federal cases that "Congress spoke loudly with its silence in not including a privilege against discovery of peer review materials in the HCQIA."21

Colorado State Law Privileges. In federal court, discovery is governed by the Federal Rules of Civil Procedure, not state rules. The Federal Rules define the scope of discovery as follows:

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action … The information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."22

Also, when in federal court the federal rules of evidence and the federal common law of privileges apply, not the corresponding state rules.11 EMTALA is a federal claim, and whenever federal law provides the governing substantive law in a lawsuit, the court looks to the federal common law of privileges to determine whether the requested materials are privileged.11,23

The court said that neither the United States Supreme Court nor the Tenth Circuit Court of Appeals has recognized a medical peer review or medical risk management privilege under federal common law.24 To the contrary, it noted that every legislative and controlling judicial indication was that federal policy, under these circumstances, opposes recognition of the quality management and peer review privileges enacted by the State of Colorado.25

Therefore, the court ordered the hospital to turn over its quality assurance, peer review, and morbidity/mortality materials related to Mr. Atteberry's care to the plaintiffs.11,26

Postscript. The adverse ruling against the hospital in this case could have been prevented. The case was originally filed in state court, and the hospital was not required to remove it to federal court. If it had allowed the case remain in state court, the Colorado peer review protections for these materials would almost certainly have applied. The hospital's reasons for moving the case to federal court aren't known from the court opinion, and it's possible they outweighed the loss of the peer review protections; however, this case highlights the risk and the issues one must consider before fleeing state court juries or judges.

Policy options to consider regarding collection of occurrence data

1. Eliminate the use of incident reports. The practice is an anachronism and today rarely serves a necessary purpose. The hospital staff already know the areas of risk in the ED and hospital settings, and everyone fully expects the hospital and involved physicians to be sued for any unexpected adverse result that occurs in the ED (or hospital) regardless of whether true negligence was the causative factor.

2. Bifurcate collection of "incident reports" from data collected in "anticipation of litigation." Only prepare an "incident report" when no harm came to the patient and litigation is not even remotely expected. If the patient incurred injury as a result of an incident, or the hospital staff believe litigation is possible, then the information should be shared only with the hospital attorney's office. Under no circumstances should the hospital use the same forms or the same process as the "incident reporting" system and no "incident report" should be generated in these circumstances. The intent is to clearly protect information under the attorney-client privilege.

3. Never allow cases of potential EMTALA violations/claims to go through the hospital's peer review process. Instead, always submit EMTALA issues directly to hospital counsel for review to establish the attorney-client/"in anticipation of litigation" privilege. The attorney can involve the appropriate medical staff in review of the case, and the educational "peer-review" benefits can still be gleaned from the case, but the potential damaging substantive deliberations can be protected from discovery in civil litigation in federal court.

4. Establish a "patient safety evaluation system" and create or affiliate with a "patient safety organization" (PSO) under the Patient Safety and Quality Improvement Act of 2005 (PSQIA).27 This new federal law provides broad strong federal privilege protections for medical peer-review activities if done according to the strict guidelines outlined in the Act. The PSQIA has the potential to overcome the inherent weaknesses of state peer review protections themselves and eliminate the jurisdictional problem of the federal courts not recognizing state peer-review statutes. However, to date, both hospitals and physicians have been very reticent to establish PSOs because the government has not yet written regulations implementing the law. More on the PSQIA will be forthcoming in future issues.

References

1. Riverside Hosp. Inc. v. Johnson, 636 S.E.2d 416 (Va. Nov. 3, 2006)

2. Va. Code § 8.01-581.17.

3. VA. Code § 8.01-581.17(B).

4. VA. Code § 8.01-581.17(C).

5. Citing HCA Health Services of Virginia, Inc. v. Levin, 530 S.E.2d 417, 420 (VA. 2000).

6. VA. Code § 8.01-581.16 (provides immunity for persons involved in the peer review process).

7. Long v. Women and Infants Hosp. of Rhode Island, No.: PC/03-0589; C.A. NO.: PC/05-4465, 2006 R.I. Super. LEXIS 124 (September 11, 2006).

8. See Super. R. Civ. P. Rule 26(b)(1).

9. Columbia/HCA Healthcare Corp. v. The 8th Judicial District Court of Nevada, 936 P.2d 844 (Nev. 1977). Incident reports prepared in the ordinary course of business not protected under the attorney-client privilege

10. Diggs v. Novant Health, 628 S.E.2d 851 (NC. App. 2006). Incident reports not privileged.

11. Atteberry v. Longmont United Hosp., 221 F.R.D. 644 (D. Col. 2004).

12. 42 USC §1395dd.

13. 42 USC §1395dd(c)(1)(A)(ii) or (iii).

14. EMTALA claims may be filed in either state court or federal court, at the discretion of the plaintiff (which is called 'concurrent jurisdiction'). However, if the plaintiff files a federal claim in state court, such as an EMTALA claim, the defendant has the legal right (option) to 'remove' the case into federal court. There a host of reasons why either party would prefer to be in one court or the other, such as jury pool, quality of the judges, or the differing rules of evidence or civil procedure. See generally the Civil Litigation chapter in Bitterman, RA. Providing Emergency Care under Federal Law: EMTALA. Published by ACEP 2001/2004.

15. 42 U.S.C. § 11101, et seq.

16. C.R.S. 12-36.5-104.

17. The other privileges averred included the attorney-client privilege and the attorney work product doctrine, but the court dismissed these privileges because the hospital didn't present them properly in its briefs. The federal courts do recognize these privileges when conducted and asserted correctly.

18. E.g. Robertson v. Neuromedical Center, 169 F.R.D. 80, 82-82 (M.D. La. 1996). Accord, Poliner v. Texas Health Systems, 201 F.R.D. 437, 438 (N.D. Tex. 2001), noting that the HCQIA does not create a bar to discovery of materials relating to peer review committees.

19. 42 U.S.C. §11111(a).

20. 169 F.R.D. 80, 82-82 (M.D. La. 1996).

21. See e.g., United States v. QHG of Indiana, Inc., 1998 U.S. Dist. LEXIS 23512 (N.D. Ind. Oct. 8, 1998); and Syposs v. United States, 179 F.R.D. 406 (W.D.N.Y. 1998), noting that no federal statutory peer review privilege exists under the HCQIA.

22. Rule 26(b)(1), Fed. R. Civ. Procedure.

23. The federal law of privilege governs even where the evidence sought also may be relevant to pendent state law claims, such as professional negligence claims. E.g., Hancock v. Hobbs, 967 F.2d 462, 466-67 (11th Cir. 1992).

24. Citing Sonnino v. University of Kansas Hosp. Authority, 220 F.R.D. 633, 644 (D. Kan. 2004).

25. Citing Patt v. Family Health Systems, Inc., 189 F.R.D. 518 (E.D. Wis. 1999), aff'd 280 F.3d 749 (7th Cir. 2002).

26. Smith v. Botsford General Hospital, 419 F.3d 513 (6th Cir. 2005). See Bitterman RA. Michigan's non-economic damages cap ruled constitutional; the cap applies to EMTALA claims. EDLegal Letter 2006;17:109-113.

27. Patient Safety and Quality Improvement Act of 2005, Pub. Law No. 109-41.