Carefully consider the role of privilege in an adverse event investigation, says Amy Hampton, JD, partner with the law firm of Bradley Arant Boult Cummings in Nashville, TN.
Assertions of privilege often are met with skepticism, and risk managers must not blindly assume that information collected during the investigative process will be protected from future disclosure by summarily claiming “peer review privilege” or “attorney-client privilege,” she says.
Before beginning an investigation, the risk manager should determine whether the investigation is purely for ordinary business purposes or, in whole or in part, for a quality improvement, legal, or other purpose for which privilege may apply. Conduct the investigation accordingly.
Even thought it might seem apparent to the drafter, “notes, reports, and data prepared for purposes of the investigation should be marked as privileged at the time they are prepared to demonstrate the intended purpose and to avoid inadvertent disclosure,” Hampton says. “Risk managers should be aware that privilege may be waived and should avoid conduct that might constitute a waiver of the privilege.”
For example, it is not appropriate to record investigation notes and findings in the patient medical record. Doing so almost certainly would constitute a waiver of privilege. Similarly, sharing findings or analysis with parties outside of the investigative process might constitute a waiver of privilege, not only as to the shared information, but potentially as to all findings or analysis related to the investigation, Hampton says.
That advice can create a tricky situation when talking with the patient or family members after an adverse event. Although transparency and full disclosure are valid goals, risk managers must be careful not to discuss privileged information, Hampton says.
Because challenges to assertions of peer review and attorney-client privilege are more commonplace today, Hampton says even experienced risk managers should consider including counsel at the outset of an investigation.
“At a minimum, the risk manager should have a working knowledge of applicable state or federal quality improvement privileges and a basic understanding of when a legal privilege applies,” she says.