Creating a robust quality assurance (QA) process will reduce malpractice risk for ED groups, according to Andrew Lawson, MD, FACEP. This is because it can identify practices that put EPs at risk for lawsuits.

As director of QA and quality improvement for two decades for the EP group at Mission Hospital Regional Medical Center in Mission Viejo, CA, Lawson regularly reviewed charts of patients who returned to the ED within 72 hours. Such review can reveal some concerning trends. One example is patients with tachycardia returning to the ED frequently. Another is patients returning with elevated white count and ultrasounds suggestive of cholecystitis. “Additionally, I would see certain physicians with a string of patient complaints,” Lawson says. This allowed for individualized education on ways to reduce dissatisfaction.

Laws normally protect the QA process from discovery during litigation. However, plaintiffs challenge this often. Email is one common pitfall. “Few people realize that essentially all email correspondence is potentially discoverable when used in the QA process,” Lawson advises. “I have seen cases in which email has been discoverable.” If email is necessary, Lawson says to avoid using patient names and instead use a modified medical record number.

“Any good plaintiff lawyer will use any argument they can muster to convince a judge of discoverability regarding hospital QA information,” Lawson notes.

Often, QA documents are protected under state peer review privilege statutes. They also may be protected under the Patient Safety and Quality Improvement Act, a federal law. “However, EMTALA actions are federal actions,” says Danielle M. Trostorff, JD, a healthcare regulatory and compliance lawyer at New Orleans-based Degan, Blanchard & Nash. Federal courts may not recognize state peer review privilege when determining discoverability of peer-review protected information. “Peer review documents in a federal EMTALA case may be discoverable,” Trostorff notes.

The resulting Centers for Medicare and Medicaid Services/Office of Inspector General investigation should make the peer review documents confidential, according to Trostorff. These should be marked as “peer review, not subject to further disclosure.”

“A Freedom of Information Act request should not be able to access those documents,” she adds. These factors make it more likely the defense will avoid discovery of QA documents:

  • Careful documentation of the peer review process;
  • Early assertion of the applicable privileges;
  • Rationale for protection of documents;
  • Maintenance of a privilege log.

A privilege log and any internal review and documentation should be generated through a peer review committee, marked as peer review and kept in a peer review file. “Or, the trail of documentation should clearly point to the peer review process,” Trostorff offers. The ED group and the hospital will be represented by different lawyers and will be treated as separate parties in the lawsuit. This can complicate the defense of both the individual EP defendant and the hospital. Normally, an ED group may have a strong partnership with the hospital’s QA team. During litigation, this changes. “You are not on the same team,” Lawson says.

The interests of an EP independent contractor and hospital, if co-defendants, are not always aligned. “EPs need to work with the hospital to ensure all QA processes involving ED care are protected from legal discoverability,” Lawson says.