Anna Grizzle, Esquire Bass Berry & Sims PLC Nashville, TN

Transcription

1 FEBRUARY 2012 EXECUTIVE SUMMARY MEDICAL STAFF, CREDENTIALING, AND PEER REVIEW PRACTICE GROUP Chipping Away at Peer Review Protections: Washington Supreme Court Considering Whether Healthcare Providers Must Produce Records Identified From Review of Quality Data Anna Grizzle, Esquire Bass Berry & Sims PLC Nashville, TN In a case argued on January 10, 2012, the Washington Supreme Court will soon provide guidance to healthcare providers on whether they must produce information obtained from a review of their otherwise-privileged quality improvement data in a malpractice action. In Lowy v. PeaceHealth et al., 247 P.3d 7 (Wash. Ct. App. Jan. 31, 2011), review granted, 257 P.3d 662 (Wash. July 12, 2011), the state Supreme Court granted review of a Washington Court of Appeals decision ordering a hospital to conduct such a review by requiring that the hospital review its internal quality improvement records to provide discovery relevant to a plaintiff s malpractice lawsuit. If upheld, the decision further undermines the protections meant to encourage healthcare providers to engage in quality review activities without fear of the information later being used against them in litigation. Factual Background In Lowy, the plaintiff, who was a former staff physician for St. Joseph s Hospital, a hospital owned and operated by PeaceHealth, brought suit against PeaceHealth on the theory of corporate negligence. She alleged that during a six-day hospital stay, she sustained permanent neurological injury to her left arm from a negligently administered intravenous (IV) infusion. As part of discovery, the plaintiff sought information relating to instances of IV infusion complications and/or injuries at [the hospital] for the years , which the parties agreed was relevant to the plaintiff s corporate

2 negligence claim. 1 The information could be obtained from reviewing the hospital s patient record database, but the hospital did not have the capability to perform an electronic search for the information. Accordingly, the parties agreed that a manual, page-by-page search of the hospital s medical records was unduly burdensome. 2 Rather than abandoning her request for the information, the plaintiff contended that the hospital could easily obtain the information through a search of the computerized database derived from the hospital s incident reports. This database was maintained by the hospital s quality assurance committee, and the requested search would yield a list of patient IV injuries by date and identification number. Coincidentally, the plaintiff was aware of this capability because she previously had served as a member of the hospital s quality and safety leadership. 3 The parties agreed that the list created from the hospital s quality assurance committee database would allow the hospital to easily identify and produce the records of patients who had experienced IV infusion complications. However, PeaceHealth objected to such a production on the ground that the database s information was protected by statute, and a search of the database to identify records for production was also prohibited by Washington statute. This statute at issue provides as follows: Information and documents, including complaints and incident reports, created specifically for, and collected and maintained by, a quality improvement committee are not subject to review or disclosure, except as provided in this section, or discovery or introduction into evidence in any civil action. 4 1 Lowy v. PeaceHealth et al., 247 P.3d 7 (Wash. Ct. App. Jan. 31, 2011), review granted, 257 P.3d 662 (Wash. July 12, 2011). 2 Id. at 8. 3 Id.at 9. 4 RCW (3). 2

3 Trial Court Decision The trial court first denied PeaceHealth s request for a protective order and ordered that the hospital review its quality assurance records and disclose underlying facts and explanatory circumstances charted in hospital records relating to alleged injuries, complications, malfunctions or adverse events associated with any IV infusions. 5 In ruling on PeaceHealth s motion for reconsideration, the trial court reversed course and found that the plain language of the applicable statute compels the conclusion that any kind of disclosure, whether of committee opinion or underlying factual complaints, shall not be disclosed. 6 The plaintiff appealed the trial court s order and requested that the court of appeals reinstate the trial court s first order granting access to information obtained from a review of the quality assurance records. Court of Appeals Analysis In reviewing the lower court s order, the court of appeals examined the legislature s intent in enacting the statute and related statutes and determined that the plain language of the statute prevented the hospital from disclosing actual quality assurance records or allowing anyone external to the hospital to review them. 7 However, the court did not end its inquiry there. Instead, it determined that the question presented by the plaintiff was whether the statute also prevented the hospital from conducting an internal review of quality assurance records to assist in locating hospital records that were not created specifically for the quality improvement committee. 8 While the court of appeals acknowledged that the statute did not expressly distinguish between internal and external review, it found as follows: 5 Lowy, 247 P.3d at 9. 6 Id. 7 Id. at Id. 3

4 But to interpret [the statute] as preventing all hospital personnel from reviewing the contents of the database would frustrate the very purpose for which the quality assurance committee gathered the records in the first place. Indeed, the hospital has already conducted an internal review of the database, as shown by a declaration stating that hospital personnel examined it and determined that it contained no responsive, nonprivileged documents. Because it is not reasonable to interpret the statute as containing an outright prohibition on internal review, we conclude the statute is most reasonably interpreted simply as prohibiting review of committee records by persons outside the hospital. 9 The court of appeals found that the trial court s first order strictly contrasted the statute at issue and limited it to its purposes. Therefore, the court concluded that the hospital could review its quality assurance records to identify and produce the relevant medical charts. It then reversed the order granting reconsideration and ordered the original order to be reinstated. In so holding, the court of appeals found that the medical records sought by the plaintiff were not created specifically for the quality assurance committee, were maintained externally to the committee s files, and were relevant and discoverable. 10 Additionally, disclosing the hospital records identified through a review of the committee database would not require the hospital to reveal otherwise-protected information. The response to the discovery request will reveal no more than if the hospital had produced the medical records through a burdensome page-by-page search. 11 Takeaways The appellate court s decision in Lowy represents a significant limitation of the quality improvement and peer review protections enacted by the state legislature if upheld by 9 Id. 10 Id. at Id. 4

5 the Washington Supreme Court. Contrary to the court of appeals reasoning, production of the patient charts that identify specific adverse events to help prove up a corporate negligence claim does force disclosure of sensitive information in which an adverse event or outcome has occurred and has not otherwise been reported pursuant to a state or federal requirement. The court attempts to justify its decision by distinguishing between an external request for protected information, which is not permitted, from the production of records based on an internal review, even though it was prompted by an outside party, in this case, the plaintiff. This distinction makes little sense and could have the effect of motivating plaintiffs to request a hospital to conduct an internal review or collection of data relevant to the litigation in the hopes that such a review has not already been undertaken so as to otherwise allow a hospital to assert confidentiality and privilege protections under state law. And while most jurisdictions allow the results of peer review decisions to be discoverable, the same is not true for confidential patient records that are protected under the physician-patient privilege. 12 This case also highlights the need for hospitals and medical staffs to carefully evaluate how their internal quality performance, peer review, and other procedures "sync up" to existing state and federal privileges and confidentiality statutes in order to maximize the protections afforded under these laws. The healthcare reform initiatives that link reimbursement to achieving identified quality outcomes instead of the volume of procedures ordered, as reflected in the accountable care organization quality metric standards, value-based purchasing provisions, and denial of payment for never events and hospital-acquired conditions, has led to the need to incorporate these and other measures into hospital's credentialing, privileging, and quality management policies and procedures. Unless a hospital and medical staff is mindful of how these laws are interpreted by the courts, whether under state law or the broader protections provided under the Patient Safety and Quality Improvement Act of 2005 through participation in a 12 See, e.g., Parkson v. Central DuPage Hospital 105 Ill. App. 3d 850, 435 N.E. 2d 140, where appellate court reversed trial court decision to force hospital to turn over redacted medical records of non-party patients in a medical malpractice and drug product liability case. 5

6 patient safety organization, they may be creating an unprotected paper trail of data and reports that will be used against them in a malpractice or similar action. Chipping Away at Peer Review Protections: Washington Supreme Court Considering Whether Healthcare Providers Must Produce Records Identified from Review of Quality Data 2012 is published by the American Health Lawyers Association. All rights reserved. No part of this publication may be reproduced in any form except by prior written permission from the publisher. Printed in the United States of America. Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought from a declaration of the American Bar Association 6