Are Personnel Files, QI, or Incident Reports Discoverable?

Imagine a plaintiff's lawyer poring over stacks of documents provided by the defense as a result of a lawsuit alleging ED malpractice, and finding the statement, "This nurse will eventually kill a patient."

"You cannot imagine how many comments like this have been turned over to a plaintiff in a lawsuit," says Linda M. Stimmel, JD, a partner at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas, TX.

You may wrongly assume that certain pieces of documentation or information are not ever discoverable, or admissible in a court of law, warns Stimmel. "This can cause huge problems in the defense of a lawsuit," she says.

A key issue in any ED malpractice lawsuit is what documents will be available to the plaintiff's counsel and, eventually, to a jury. "The critical document will almost always be the chart," she says. "Strive for accuracy and completeness — and objective, not subjective, charting."

Do not assume that incident reports and personnel files that contain nursing evaluations and past complaints will always be confidential, advises Stimmel. In many states, incident reports are considered documents created "in the regular course of business" and will be discoverable in a lawsuit, she explains, and most states also allow plaintiffs to have copies of the personnel files of staff that provided care to the patient.

"I have defended many lawsuits where we were damaged by notations in a personnel file that showed prior disciplinary actions toward a nurse for the same issues in the lawsuit," says Stimmel.

That allows the plaintiff to argue that the emergency department administration had "notice" of potential harm and ignored it, says Stimmel, and to argue that the plaintiff should be awarded damages for "gross negligence."

While staff evaluations that document disciplinary issues do need to be created, Stimmel says to have medical staff or hospital committees direct these evaluations. "You can then keep those out of a personnel file," says Stimmel. "The safest method is to always realize that any of those documents may be discoverable in a lawsuit."

Not Necessarily Inadmissible

In Illinois, the Medical Studies Act ensures that any documents created and used for the purposes of internal quality control or medical studies done to lower death rates and improve patient care cannot be admissible as evidence or discoverable.

The purpose is to encourage medical professionals to be candid when conducting internal reviews and medical studies, according to Robert D. Kreisman, a medical malpractice attorney with Kreisman Law Offices in Chicago.

"However, not every document a peer review committee uses is necessarily inadmissible," says Kreisman. While any document generated or created specifically for the peer review committee is protected, he explains, documents that aren't necessarily an integral part of the peer review process are not privileged.

For example, minutes of the peer-review meeting would be privileged, while anything that is a part of the medical chart itself would not be privileged. Since only documents that can be shown to have been generated specifically for the peer-review process are privileged, any documents generated before or after the review process formally begins or ends are not covered, adds Kreisman.

"Even peer-review summaries made in interviewing doctors before the peer-review process officially begins are not privileged," he says.

Since the Medical Studies Act is not intended to protect hospitals from potential liability, but rather to help improve patient care, any documents or information that do not specifically serve this purpose are not privileged, says Kreisman. For example, any documents generated in the normal course of hospital business are not privileged, such as regulations and bylaws, credentialing requirements, and staff memos.

"Likewise, any information the hospital is required to generate for government agencies, such as data concerning the number of MRSA patients in a hospital at a given time, is not privileged," says Kreisman. "Such data is not aimed at internal review."

However, even those documents that are integral to investigating poor hospital or medical care are not necessarily privileged unless they are specifically related to the peer-review process, notes Kreisman.

If the hospital investigates a patient's complaint about the quality of care in order to avoid a potential malpractice claim, none of the documents generated in the course of the investigation would be privileged, explains Kreisman, unless the investigation was initiated by a peer-review committee.

"Any conversations or reports generated by staff following an unusual event are not privileged, even if they were done in anticipation of the peer-review process," says Kreisman.

In order to be privileged, the information needs to be generated during the limits of the peer-review process only, says Kreisman, and investigations into hospital quality control issues that are not directly related to patient care, such as slip and fall accidents, are not privileged.

While documents and information generated for a peer review committee or for medical studies is privileged, Kreisman says that there are even some exceptions to that rule. "For example, the actual results of a peer review committee hearing are not privileged, nor are any resulting changes to hospital policies," he says.

Any resulting suspensions or revocation of privileges are not privileged, and can be submitted into evidence, says Kreisman. "While the results of the peer review committee are not privileged, the internal conclusions of the committee that might have led to those results are privileged," he says. While the formal results of a peer review are therefore discoverable in Illinois, items such as committee meeting minutes are not.

To establish that certain documents are, in fact, privileged, simply asserting that documents and information were generated for a peer review committee or for use in a medical study is not enough, says Kreisman.

Unless the hospital attorney proves this to the court, he explains, refusal to produce requested documents will lead to a motion to compel brought by plaintiff's counsel. "A court hearing will follow to determine the propriety of the hospital's refusal to produce the requested documents," says Kreisman.

Typically, the attorney will be required to generate a log of all the documents and information that he or she considers privileged, says Kreisman, but the ultimate determination rests with the court.

"In some cases, the court might require an in camera inspection of the privileged documents in order to establish that they are, in fact, privileged," he says. "Whether the documents requested are privileged as part of a peer review process or medical study is a fact issue decided by the court."

In one case, a hospital physician wrote a letter to his department head outlining the course of events surrounding a complicated birth that resulted in disabilities to the child.1 The delivering doctor assumed that his letter would be used for internal quality assurance issues and was, therefore, privileged, says Kreisman, and the obstetrics department head confirmed that the letter triggered the internal quality control proceedings regarding this matter.

However, since the internal review process did not formally begin for several months, the court held that the physician's letter was not generated specifically for the peer review committee, because it preceded the committee meeting and was not specifically done on behalf of the committee.

In order for documents to be privileged, they have to be generated specifically for the peer review committee, at the committee's request, and during the timeframe of the review process itself, explains Kreisman. "Any information that does not satisfy these requirements may be ruled discoverable by a court, and be admissible into evidence," he says.

Reference

1. Berry v. West Suburban Hospital Medical Center, 338 Ill.App.3d 49 (1st Dist. 2003).

Sources

For more information, contact:

• Robert D. Kreisman, Kreisman Law Offices, Chicago, IL. Phone: (312) 346-0045. Fax: (312) 346-2380. E-mail: bob@robertkreisman.com. Web: www.robertkreisman.com.

• Linda M. Stimmel, JD, Partner, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX. Phone: (214) 698-8014. Fax: (214) 698-1101. E-mail: linda.stimmel@wilsonelser.com.