Will Patient Safety Initiatives Harm Physicians?

Brian S. Kern, Esq.


March 09, 2012


Peer review, the patient safety method designed to identify ineffective, unethical, or impaired physicians, can help improve the delivery of medical care, provide risk-management lessons, and lead to improved policies and procedures. At the same time, some doctors and hospital administrators have expressed concern that peer review produces fodder for civil or criminal lawsuits against physicians and healthcare institutions.

The body of law on patient safety initiatives and their level of confidentiality has evolved considerably. Historically, case law, recognizing the importance of peer-review procedures -- and the need to keep them confidential -- has protected self-critical analysis and other forms of internal investigation.

For example, in Christy v. Salem (2004), a New Jersey appellate court addressed whether a hospital's peer-review committee report was discoverable in a medical malpractice case. In declining to "adopt the privilege of self-critical analysis as a full privilege," the court chose to rely on a "case-by-case balancing approach" and essentially held that facts contained within a report are subject to legal discovery, but "evaluative and deliberative materials" are not.

Shortly thereafter, the Garden State adopted the New Jersey Patient Safety Act (NJ PSA), which in large part codified Christy v. Salem. The measure was tested early when, during the discovery phase of a medical malpractice trial against an obstetrician, a plaintiff's attorney sought hospital reports related to patient safety. The defense objected, asserting that the information was privileged and thus legally protected against disclosure.

In an unreported opinion, Applegrad v. Bentolila (2010), the New Jersey appellate court remanded the case for further proceedings -- with some guidance. The court held that the trial-court judge should review the case in camera (privately rather than in open court) to determine what information was factual and what was evaluative, and then proceed accordingly.

The Fight Continues

Similar battles are taking place across the country while the issue of the discoverability of peer-review data continues to play itself out in New Jersey.

Not long after New Jersey passed the NJ PSA, Congress passed the Patient Safety and Quality Improvement Act of 2005 (the Act). The Act authorized the creation of patient safety organizations (PSOs), which are permitted to engage in a number of activities related to improving patient safety. To address physicians' fears that a PSO report could be used against them in a medical malpractice case, the Act includes "work product" confidentiality protections regarding information given to and reported by PSOs.

Nevertheless, challenges to the Act are popping up. In Fancher v. Shields, a 2011 Kentucky case, plaintiffs in a medical malpractice action sought to compel the defendant hospital to produce "sentinel event records and root cause analysis." Though upholding the privilege under the Act, the Kentucky court held that facts are indeed discoverable.

The court also exposed a potential weakness for plaintiffs to exploit, noting, "The language of the Act appears to be contradictory in that it declares a privilege and then claims that it does not 'limit...the discovery or admissibility of information described in this subparagraph in a criminal, civil, or administrative proceeding.'"

On the heels of this decision, the Illinois Department of Professional and Financial Regulation, which is investigating Walgreens for alleged medication negligence, has subpoenaed all related internal reports. Walgreens has challenged the demands, claiming protection under the Act.

While the court wrestles with this latest attack on the scope of internal review, physicians and healthcare institutions should examine the protections -- and limitations -- afforded under the Act. The industry should take as many precautions as possible to prevent unnecessary disclosure of any information compiled with the goal of improving patient safety and quality in the delivery of healthcare.


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