Are Incident Reports Discoverable?
Alan C. Horowitz, Esq., RN, RRT
The issue of whether hospital incident reports are discoverable in civil law suits is often litigated. In a recent case, a hospital argued that its incident reports are protected under the attorney-client privilege and a state statute.
The case began when a patient was admitted to a hospital and placed on a ventilator. The patient suffered brain damage and lapsed into a coma due to a ventilator disconnect. At the time the case was decided, the patient was unable to speak, unresponsive and a quadriplegic.
The complaint alleged that the hospital inadequately trained its staff in the proper and safe operation of a ventilator. During discovery, the plaintiff sought numerous documents from the hospital. The hospital refused to release certain documents, arguing that they were protected under the Illinois Medical Studies Act.
The court ordered the hospital to produce these documents, but it still refused to release a “Situational Report,” written by the respiratory therapist who described her conduct on the date of the accidental ventilator disconnect, and an “Incident Report,” authored by a nurse who described her conduct at the time of the accident.
The medical director of the hospital and chairman of the Hospital Oversight Committee (HOC) provided affidavits supporting the hospital’s contention that the requested documents were privileged. According to the medical director, the incident reports were prepared at the request of the HOC and represented “an integral part of the quality assurance process.” An associate administrator and attorney for the hospital also supplied the court with affidavits in support of their position. The attorney claimed that she requested the reports “for the purpose of rendering legal opinions” to the hospital. If the court accepted this proposition, the reports may have been protected by the attorney-client privilege.
The trial court held the hospital in contempt for not turning over the requested documents and ordered production of all the documents. The hospital appealed the case.
The issue before the appeals court was whether the decision of the trial court was supported by sufficient evidence. For its part, the hospital argued that the Illinois Medical Studies Act and the attorney-client privilege precluded the contested documents from discovery. The Act states that “All information, interviews, reports, statements, memoranda,…or other third-party confidential assessments of a health care practitioner’s competence, or other data…used in the course of internal quality control or of a medical study…or for the purpose of improving patient care…shall be privileged, strictly confidential and shall be used only for medical research.”
The court noted that the Act protects against discovery of peer-review committee information. However, the court went on to reason that the sought after documents fall into two categories–pre-deliberation and post-deliberation. According to the court’s analysis, the “incident or situational reports” were generated before the hospital began its deliberative process. Alternatively, other documents were generated after the hospital’s deliberative process.
Having noted that the disputed documents fall into two categories, the court observed that the Act does not provide a shield for disclosure of documents generated before the peer-review process. In arriving at its conclusion, the court focused on an Illinois Supreme Court decision that dealt with the issue of discoverability.
The case the Illinois Supreme Court decided was based on a suit filed by the parents of a baby born with birth defects. The birth defects allegedly were caused by the mother’s anesthesia. After the birth, the chief of anesthesiology discussed what happened with a nurse and nurse anesthetist. The conversations were held before the hospital’s peer-review committee addressed the incident. The parents fought to compel the disclosure of those conversations over the hospital’s vehement objections. However, the Supreme Court of Illinois noted that involvement in the peer-review process was a prerequisite for the hospital to avail itself of the privilege. To do otherwise would be to “subvert the purpose of the Act by protecting hospitals from medical malpractice claims,” noted the court.
After a thorough analysis, the court of appeals held that neither the attorney-client privilege nor the state’s Medical Studies Act could provide a shield against discovery. Thus, the hospital was forced to release its incident (and other) reports. *
Alan C. Horowitz is director of clinical and legal affairs at the Institute for Safe Medication Practices, Huntington Valley, PA.
