Personal communications can be discoverable
Even incident reports aren't always protected
Physicians' personal notes about a patient's care. Incident reports if a patient is harmed. Information given verbally or in writing to the hospital's risk managers. Conversations or e-mails with ED physicians about the patient's care. E-mails or conversation with physicians who don't work in your ED. Personal correspondence with noninvolved parties.
All of these items are potentially discoverable, according to Steven D. Davidson, JD, a partner with Omaha, NE-based Baird Holm. "All notes, conversations or e-mails with colleagues, whether inside or outside the ED, are typically subject to discovery," says Davidson. "The same is true for incident reports and conversations with risk management where facts about the event are being gathered."
There are two general exceptions, however. The first includes any information provided to an attorney, or to others when an attorney is present to give legal advice. "For that reason, we often advise that a lawyer be involved promptly after a significant adverse event, so that conversations and information can be protected by the attorney/client privilege," says Davidson.
The second exception is conversations and information provided for a peer review committee. States treat the peer review privilege differently. For example, in Nebraska, according to Joseph J. Feltes, JD, a partner with Buckingham Doolittle in Canton, OH, if a physician provides information or creates documents in connection with an evaluation of the event by a formally recognized peer review committee, which is acting within its function to evaluate and improve care, a privilege exists that protects the information from discovery in a later malpractice action involving the same event. However, again in Nebraska, this privilege does not reach incident reports or communications with risk managers who are gathering information about an event in the normal course of their job duties, and not in connection with a particular peer review activity.
Davidson says, "This privilege does not prevent access to the underlying facts about the event, but rather the evaluative activity of the peer review committee."
Source
For more information, contact:
- Joseph J. Feltes, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5225. E-mail: [email protected].
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