What's Discoverable - and What's Not - in ED Malpractice Cases?
December 1, 2009 9 minutes read
What's Discoverable - and What's Not - in ED Malpractice Cases?
In an ED malpractice lawsuit, "sometimes the strangest things become hot topics of discovery," says Chris DeMeo, JD, a health care attorney at McGlinchey Stafford in Houston, TX. In one case, several nurses who cared for the patient during the events in question threw a baby shower for one of their ED nursing colleagues. "The plaintiffs' theory was that the nurses got together at the baby shower and concocted a story to help the defense. So they demanded all e-mails regarding the shower, and grilled each nurse in her deposition about the baby shower," says DeMeo.
In another instance, a nurse hand wrote an account of an incident at the request of her supervisor. The supervisor then typed the note, saved it on the ED's computer system, and disposed of the handwritten version. "The plaintiffs' theory was that the handwritten version was incriminating and that the typed version cleaned it up," says DeMeo. As a result, the IT director of the hospital had to give a deposition on how the computer system saved documents, audit trails, and other information related to the creation and maintenance of documents on the system.
In that same case, the hospital maintained a list of patients who frequented the ED requesting narcotics. There was an issue of whether the plaintiff was on the list, and the list was required to be produced. "Unfortunately, the ED had moved between the time of the incident and the filing of the lawsuit, and in the move, the list was discarded," says DeMeo. "Because of this, each doctor practicing in the ED during that time period had to give a deposition about the list."
If you are a defendant in a malpractice suit, assume that everything is discoverable. "Then, try to identify exceptions to this general rule," says DeMeo.
While states differ on the exact scope of discovery, most pattern their discovery rules after the Federal Rules of Civil Procedure, which states that "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence .."
"The important thing to take away from the rule is that discovery is not limited to what may be admissible in evidence at trial," says DeMeo. As a result, the discovery phase of litigation can encompass time periods that are much longer than what the provider may believe is relevant to the claim, may touch on patients other than the plaintiff, and may involve matters that do not relate directly to patient care.
Peer review may not be shielded
Discovery in a medical malpractice case starts with the complete medical record for that patient. "However, patients' attorneys often attempt to broaden their discovery requests to capture internal documentation which they believe could be relevant to their claim," says Justin Greenfelder, JD, an associate attorney in Canton, OH-based Buckingham, Doolittle & Burroughs.
Most states have enacted laws that prevent any documentation or communication used in the peer review process from being discovered in a lawsuit. "Members of a peer review committee and anyone providing information to a peer review committee are also exempt from testifying as to any matter presenting during the peer review process," says Greenfelder. "Incident reports and risk management reports are also shielded from discovery, in most states."
However, this does not prohibit a patient's attorney from discovering information that is available from other "original sources." This means that a document used in peer review is not automatically shielded from discovery if it is available from another non-confidential source, such as the patient's medical record.
"This is the 'gray area' that many patients' attorneys attempt to exploit," says Greenfelder. "Most courts, however, are loathe to order the release of confidential, peer review documents. Courts recognize the legitimate purpose of peer review-to promote quality health care-and rarely will order a hospital to disclose these documents." Instead, courts will often conduct an in camera review of such documents to determine whether they should be disclosed.
If you are called to give testimony to a peer review committee, be careful not to discuss your testimony with anyone outside the confines of peer review. "A crafty plaintiff's attorney will often inquire whether a physician or nurse has spoken to any other medical professionals outside the scope of the peer review process," Greenfelder explains. "These conversations are discoverable."
What constitutes harassment?
According to DeMeo, "there are two basic principles which limit discovery, privilege and harassment. Examples of privileged information include attorney-client communications and peer review materials. The concept of harassment comes into play when discovery becomes too burdensome in relation to the benefit it may provide in the lawsuit."
For example, in a case alleging failure to administer tissue plasminogen activator to a stroke patient, information on how many stroke patients the department has seen in the past five years may be discoverable, whereas information on the number of patients with chief complaints of weakness and slurred speech over the past five years may not be.
Since the latter population includes patients without stroke, DeMeo says that "the burden of gathering the information outweighs any benefit the plaintiff would receive from data regarding patients presenting with intoxication, head trauma and other conditions unrelated to stroke."
On the other hand, ED log books, policies and procedures of the department, documents relating to the physician's practice group, personnel files of non-physician staff, time cards and schedules, ED management agreements and malpractice insurance are "routinely discoverable in malpractice cases," says DeMeo.
Trial court judges have extensive discretion in determining what is and what is not discoverable. "Their decisions will only be overturned if they actually violate the law or the judge acted without any reference to the law or other guiding principles," says DeMeo. "For practical purposes, therefore, the scope of discovery will depend on the judge. Some judges advocate broad discovery, while others are more discriminating."
DeMeo warns that the Federal Rules of Civil Procedure and growing numbers of state discovery laws are becoming more onerous on the issue of electronic/ digital information, or "e-discovery." The federal rules in particular place heavy burdens on parties involved in litigation to save digital information once they are on notice of a lawsuit, and require strict procedures for providing and retaining digital information.
"An unwary defendant can get into trouble quickly by deleting e-mails and other electronic data during the discovery phase of a lawsuit," says DeMeo.
In some instances, records of other patients may be discoverable provided the defendant redacts personal identifying information and the plaintiff agrees not to disclose the records. For example, in a case alleging an inordinate delay in treatment, the plaintiff may discover the records of the other patients treated during the relevant time period to establish the volume and acuity of the patient population during the events in question, and show either that there was plenty of opportunity to treat the plaintiff or that the ED was short-staffed during that shift.
"On the other hand, a case of misdiagnosis of sepsis should not justify discovery of the records of all other patients with that diagnosis, unless there is some indication of a pattern of negligence with respect to that problem," says DeMeo.
Incident reports and meetings with risk management generally fall under the category of privilege. "There are two different privileges that can apply," says DeMeo. First, items prepared in anticipation of litigation and to assist the attorney in providing legal services are protected under the work product privilege and the attorney-client privilege.
What qualifies as "anticipation of litigation," however, can differ from state to state. Some states require there to be formal notice of a claim or lawsuit before a defendant can claim "anticipation of litigation." Other states recognize there may be anticipation of litigation based on the conduct at issue, the type of injury, and the conduct of the patient and family.
"In cases of significant injury, where the family threatens legal action, asks to speak with administration or orders a copy of the medical record soon after discharge, there may be an anticipation of litigation even though no attorney has been hired or lawsuit filed," explains DeMeo.
The second privilege that applies in this regard protects peer review, quality improvement and other hospital committee documents that reflect or relate to a deliberative process and are designed to improve the quality of patient care at the facility.
For example, Texas has a broad "hospital committee" privilege which generally protects communications to and from a committee made for committee purposes, deliberations of the committee, and conclusions of the committee. "A committee can be established under the hospital bylaws or created ad hoc for a particular investigation," says DeMeo. "Incident reports and other risk management activities related to a specific occurrence usually come under this privilege."
In Texas and other states providing these privileges, providers should know the statutory requirements and structure their incident reporting and other quality improvement functions accordingly. "For example, incident reports should prominently bear the title 'Privileged Committee Document - Do Not Disclose,' says DeMeo.
Assuming the case is in litigation or there is a valid anticipation of litigation, DeMeo says that communications between the provider and his or her attorney are never discoverable. "Mental impressions, strategies and thought processes related to the litigation developed by or in conjunction with the attorney, often called 'core attorney work product' are not discoverable," he adds.
There is no exception, however, for personal e-mails, correspondence or notes. "If those documents are relevant to the subject matter of the litigation, and do not fall within a privilege, such as the attorney-client privilege, they are discoverable," says DeMeo. "The fact that they are not part of the medical record is irrelevant."
DeMeo says that in one case, a nurse's e-mails regarding his concerns about practices in the ED were discoverable, even though they did not relate to the patient filing the lawsuit. In another case, a case manager's notes regarding communications with insurance companies regarding the patient's condition were discoverable.
"You shouldn't work on the assumption that 'nobody will ever see this,' because it may not be true. Some judge may tell you you're wrong, and you have to fork it over. And then you're stuck with whatever you wrote," says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician.
"You don't have to roll over and play dead just because somebody asks you for a piece of paper, you can fight and maybe you'll win," says McMenamin. "But if you've written it in a way that reflects the possibility that bad guys may get your stuff, at least you'll be better off than if you prepared it with no such idea in mind."
For instance, you may take out a piece of paper and write a private note, not to put in the patient's chart, but to take home and stick in a drawer on the theory that "Someday I may need to remember this."
"In my experience, nurses do this more often than doctors. I refer to this practice as 'ectopic charting.' I have never yet seen a case when ectopic charting did anybody any good. It always creates problems," McMenamin says. "The author thinks he is the only one who will ever see it. Wrong. Because what will happen is you'll be deposed. And one of the questions will be, 'Did you maintain any notes about the case?'"
If your answer is "only private notes for myself," this will elicit a new string of questions about whether they were handwritten or typed, their length, whether anyone else has seen them, where they are located, and when they were last reviewed. "And you know what? A judge will probably make you produce them, especially if you just read them shortly before your deposition in order to refresh your recollection about what happened - in other words, if you used them for the very purpose that you created them for," says McMenamin.
Often, such notes are written when an individual is tired and upset. "You may say rash things that in the light of day, you regret," says McMenamin. "Or human nature being what it is, you may say, 'It wasn't I, it was Nurse Jones, if she had only done what I said.' Well, Nurse Jones is going to be represented, and her lawyer is going to find out about whatever you wrote. If there's finger pointing to do, let your lawyer do it, not you. Because all you do is invite reciprocity, and nobody benefits from reciprocity of that variety. The plaintiff is the one who comes out ahead in that situation."
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