Incident Reports, Peer Review and Discovery

Incident Reports, Peer Review and Discovery

Page 5

legal briefs

Incident Reports, Peer Review and Discovery

Alan Horowitz

On July 24, 1995, Elizabeth Collins was involved in a car accident. She was taken to Saint Joseph Hospital and initially treated in the intensive care unit. On August 4, 1995, she was transferred to the hospital’s pediatric unit. Among her medical orders was an order that permitted her to get out of bed with “one assistant with her.” The physician who ordered assistance did so in order “to minimize the possibility of an accident happening.” The day of her transfer, a nurse accompanied Collins to the restroom. She was returned to bed with the side rails in the up position. Soon after, Collins attempted to climb out of bed and fell. Her nurse made an entry in Collins’s medical record that stated the “patient fell,” and “the CT scan taken after she fell showed Collins had a significant large right hemispheric subdural hematoma which was not present on a CT scan taken the day prior to the fall.” More importantly, the nurse’s note also indicated that a “report” was made. The report was an incident report.

The conservator of Collins, who was a minor at the time of the fall, filed suit seeking to recover damages for the injuries Collins allegedly sustained as a result of the fall. It was alleged that the fall resulted in the placement of a tracheostomy tube and gastrostomy tubes, pneumonia and the inability to respond to verbal commands or move her limbs at the time of discharge. Additionally, it was alleged that the fall left Collins “permanently disabled and unable to work” with “little or no future earning capacity,” noted the court.

During the discovery phase of the underlying action, the conservator sought copies of all incident reports that the nurse referred to in Collins’s medical records. The hospital claimed the incident reports were made as part of the hospital’s utilization review or quality assurance assessment and were privileged and therefore not discoverable. The conservator also sought discovery of the “fall lists” that two nurses compiled. Here too, the hospital asserted the fall lists were privileged because they were prepared for quality review purposes. The case worked its way up to the state’s highest court, the Supreme Court of Nebraska.

The Issue
The court was faced with deciding the issue of whether the incident reports and fall lists were protected from discovery based on the state’s peer review privilege. It addressed the two types of documents separately.

The Incident Reports
The court noted that the state provided statutory protection for peer review materials. Proceedings, minutes, records and reports of any medical staff committee or utilization committee are privileged communications that may not be disclosed or subjected to discovery, observed the court. However, the court noted that there is nothing in the peer review statute that extends the privilege to medical records kept in a hospital’s ordinary course of business.

Although the hospital did not have a “utilization review committee,” it did have a “quality committee” that functioned in much the same way according to the testimony of the hospital’s director of quality. The director of quality testified that “the incident report prepared by [the nurse] was created and utilized for quality assurance purposes,” according to the court. The court observed that the incident report involving Collins was not reviewed by the hospital’s quality committee.

The hospital’s director of nursing provided deposition testimony in which she described incident reports, such as the one regarding the fall, as an “internal communication tool” that was employed to inform the “people in authority” of “what has happened.” She also testified that the former risk manager explained to hospital employees to “just fill out the facts” when completing an incident report. The nurse who completed the incident report noted the results of a neurological examination that she performed on Collins after the fall. That information was not included in Collins’s medical records.

The Fall Lists
Two nurse managers testified that they each compiled fall lists of patients who had fallen in their respective units. One nurse manager testified that she was not asked by anyone at the hospital to prepare the list. There was no evidence presented that indicated the hospital’s other nurse manger was requested to prepare the list for the quality committee. Included in the lists, were patient names, date and time of falls and a description of the falls. Both nurse managers gleaned the fall information from incident reports.

The Decision
The state Supreme Court declined to extend the peer review privileges to either the incident reports or fall lists. It noted that the documents were not prepared upon the request of a hospital-wide staff committee or hospital-wide utilization review committee. The court found the reports were “merely factual accounts or fact compilations relating to the care of a specific patient [and therefore] are not privileged.” Even if the reports had been prepared at the request of a hospital-wide committee, they would not be protected from discovery, noted the court.

Thus, Nebraska joins a number of other states in holding that incident reports are neither privileged nor shielded from discovery. Court decisions interpreting the peer review privilege vary considerably from state to state and even within a given jurisdiction. Competent counsel in your jurisdiction should be consulted for guidance in dealing with discovery requests such a request for production of documents.

Alan C. Horowitz is assistant regional counsel, Office of General Counsel, Department of Health and Human Services (HHS). Any views expressed herein are those of the author and do not necessarily reflect the official policy or position of HHS, the Office of General Counsel or the U.S. government.