Medical malpractice plaintiff’s attorneys are increasingly confident about obtaining potentially game-changing documents that managers assumed would never be seen by the other side.
A trend in court rulings shows that plaintiffs in litigation against healthcare providers are gaining access to more documents that traditionally have been considered off limits. Many of the documents in question previously were protected by the attorney-client privilege. Notes made immediately after an adverse event are among those that might be accessed.
Documents following an incident might be safe if investigations are conducted only at the behest of your attorney, because in most jurisdictions that would make the resulting document protected under attorney-client privilege, says Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM, a patient safety and risk management consultant with The Kicklighter Group in Tamarac, FL, and a past president of the American Society for Healthcare Risk Management (ASHRM) in Chicago.
That distinction might mean making a quick call to the attorney to report the incident and asking "Should I go out and investigate this?" When the attorney says yes, Kicklighter says it provides a foundation for gathering information on the instruction of your counsel, which can make it protected.
Elective surgery incident
One web 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. In furtherance of the act’s purpose, 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 [42 U.S.C.A. §299b-22(b); 42 C.F.R. § 3.206(b.)]
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 at the defendant hospital concerning the surgery through the defendant hospital’s patient safety evaluation system. The defendant hospital objected to producing the report, alleging 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 patient safety work product expressly does not include information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system. 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 around to that way of thinking. The court noted that Kentucky administrative regulations with regard to Kentucky hospitals 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: . . . (5)
[i]ncident investigation reports; and (6) [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 generally are discoverable under Kentucky law. (See the story below for additional information on what materials you should collect.)
