Patient Safety Act: Court Upholds Confidentiality Of Patient Safety Work Product.

Patient Safety Act: Court Upholds Confidentiality Of Patient Safety Work Product.

Legal Eagle Eye Newsletter for the Nursing Profession

August 2018

The policy of the law is to allow full and complete disclosure of all relevant information, or information that could lead to the discovery of relevant information, in pretrial discovery in civil lawsuits. The burden is not on the party seeking information to justify its disclosure, but on the party seeking to prevent disclosure to justify a claim of legal privilege exempting the information from disclosure.

To meet its burden to justify nondisclosure, when they were created the hospital had labeled the files from a physician’s review of the blood-glucose data for the patient with the identity of the patient safety organization to which the files were to be transmitted. The Court is satisfied the files are privileged patient safety data generated to be reported to a certified patient safety organization and exempt from discovery.

Medical records that were used to garner the patient safety data are not confidential. The nurses can still be called to testify in pretrial depositions and before the jury in the family’s case. APPELLATE COURT OF ILLINOIS June 28, 2018

The hospital faces a lawsuit from the family of a patient who died in the hospital allegedly as a result of her nurses’ negligent monitoring and management of her blood glucose levels. The family’s lawyers sought through the civil court pretrial discovery rules to obtain as much of the hospital’s documentation as the court would allow that pertained or potentially pertained to the case, that is, documentation that could bolster the family’s case against the hospital.

One discovery request asked for documentation relating to any report to or investigation by a governmental committee, agency or body. The hospital’s attorneys identified several documents in the hospital’s possession that related to that request, but argued the documents are privileged from discovery under the US Patient Safety and Quality Improvement Act (Act).

The Appellate Court of Illinois re-versed the ruling of the local county judge that the documents are not privileged. Several years earlier the hospital had set up a contract with a patient safety organization that was certified under the Act to conduct activities to improve patient safety and quality of care. The hospital’s reports of this incident to the organization, the Appellate Court ruled, squarely fit the Act’s definition of patient safety data and thus are exempt from disclosure in civil court discovery.

The Appellate Court pointed out that any patient medical records appended to or referenced in the hospital’s report are outside the Act’s definition of patient safety data and are not exempt from discovery. Full and complete disclosure of all patient care records to the patient, to the patient’s representative or the probate estate’s representative is still required. The Act also does not exempt a treating physician or nurse from having to testify fully and candidly in a pretrial discovery deposition or in court before the jury. Daley v. Teruel, 2018 IL App (1st) 170891, __ N.E. 3d __, 2018 WL 3203612 (June 28, 2018).