Hospital, plaintiff fight over incident report
Medical malpractice plaintiff’s attorneys are increasingly confident about obtaining potentially game-changing documents that risk managers assumed would never be seen by the other side. The attorneys at one site seeking malpractice plaintiffs recently discussed the Aug. 21, 2014, decision of the Supreme Court of Kentucky. In that case, the defendant hospital claimed a federal confidentiality privilege to refuse to provide the medical malpractice plaintiff with a copy of the incident report. The incident report was written by a surgical nurse at the defendant hospital concerning an elective surgery that resulted in the death of the patient.
The plaintiff obtained the incident report. MedicalMalpracticeLawyers.com provides this summary of the case:
The decision was not easily reached. As the Kentucky Supreme Court noted, the Patient Safety and Quality Improvement Act of 2005 was enacted by the U.S. Congress to encourage healthcare providers to voluntarily associate and communicate privileged patient safety work product (PSWP) among themselves through in-house patient safety evaluation systems (PSES) and with and through affiliated patient safety organizations. The act provides a confidentiality provision establishing that "patient safety work product shall be confidential and shall not be disclosed," except as authorized by the act itself.
After a patient died as a result of complications from elective spinal surgery, her estate filed a medical malpractice and wrongful death case during which the estate sought to be provided a copy of the post-incident or event report generated by a surgical nurse through the defendant hospital’s patient safety evaluation system. The defendant hospital alleged that the only post-incident report that existed was a report created through its patient safety evaluation systems and therefore was protected from discovery by the federal privilege for patient safety work product created by the act.
The plaintiff argued, however, that the act’s definition of PSWP expressly does not include information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation systems. Therefore, according to the argument, such separate information reported to a patient safety organization is not by reason of its reporting considered to be patient safety work product.
The Kentucky Supreme Court came noted that Kentucky administrative regulations provide that "administrative reports shall be established, maintained and utilized as necessary to guide the operation, measure of productivity and reflect the programs of the facility" and these reports "shall include: . . . ncident investigation reports; and ... [o]ther pertinent reports made in the regular course of business."
Because these types of reports are required in the regular course of the hospital’s business, they are hospital records, and, therefore are generally discoverable under Kentucky law.