COMMENTARY

This Doctor's Love Affair Became Malpractice; Peer-Review Privacy; and More

Wayne J. Guglielmo, MA

Disclosures

December 13, 2012

In This Article

State Rulings Limit Peer-Review Reporting Protections

A pair of recent rulings by the Kentucky Court of Appeals may threaten peer-review protections, especially in states where they are weak to begin with, according to a posting on amednews.com.[2]

For doctors and other providers once fearful that their medical error reports would air as part of a legal discovery process, the Patient Safety and Quality Improvement Act of 2005 has been a welcome relief. Among other things, the law imposes significant limitations on the use of peer information in criminal, civil, and administrative proceedings.

The Kentucky rulings stem from 2 unrelated cases. In the first, Tibbs v. Bunnell et al., a woman's family sued several physician employees of University of Kentucky HealthCare, in Lexington, "after she died of surgical complications." During discovery, the plaintiffs requested that incident reports concerning the woman's care be handed over. The physicians objected, however, arguing that the 2005 act protected those reports from disclosure. When the trial court ruled in favor of the plaintiffs, the defendants appealed.

But in an opinion handed down in August 2012, the Kentucky Court of Appeals "said that only self-examining analysis by the medical professional in question" -- that is, only the treating doctor's self-evaluation of the care he or she provided -- "is protected." Other, more fact-based reports, said the court, must be disclosed. Defendants' appeal to the state Supreme Court is pending.

In the second case, Norton Hospitals Inc. v. Cunningham et al., a man's family "sued Louisville-based Norton Hospital for negligence after he died at the medical center." Admitted for lower-leg paralysis, the man had succumbed in the hospital due to septic shock. When the plaintiffs requested documents that the hospital prepared following his death, it declined, citing the federal law. As in the first case, the trial court sided with the plaintiffs, and the hospital appealed.

In a ruling that echoed the one in Tibbs, which was handed down the same day, the appeals court mandated that all reports that were not self-examining analyses should be handed over. Expectations are that the disposition of this second case will be determined by the high court's ruling in the first one.

Not surprisingly, each side views the significance of the expected ruling through a different lens. The plaintiffs' attorney in the second case, Nick Naiser, told amednews that Norton hospital is "attempting to withhold facts to the spouse of someone who passed away because of this alleged federal protection. If this federal protection can be interpreted to shield facts, that would seriously compromise an injured party's right to pursue a medical negligence claim."

But Naiser would like the high court ruling to go further than simply upholding the lower court's decision on fact-based documents. He has also filed a separate appeal to address his added concern that non-patient safety documents -- that is, documents that were not created in response to the Patient Safety Act -- also be exempt from federal protections. Although the court of appeals was right to rule as it did regarding the limits of federal reporting protections, he says, it didn't recognize that documents created based on laws other than the 2005 act are also exempt from protection.

But Wesley R. Butler, the attorney for Norton Hospital, thinks the state appeals court erred in its interpretation of how the federal law applies to protected documents. The appeals court, Butler told amednews, "uses language that seems to restrict the federal privilege to less than what Congress intended the privilege to be...The act provides very broad protections for any information that is developed within a patient safety and quality improvement process recognized by the act." Butler believes the appeals court's interpretation is not only "legally wrong" but "inconsistent with what the federal act provides."

Both the Kentucky Medical Association and the American Medical Association have issued legal briefs opposing the appeal court rulings.

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