Quality Assurance Privilege: Law Provides No Shield To Cover Wrongdoing.
Legal Eagle Eye Newsletter for the Nursing Profession
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Most of what is said and done in a quality improvement committee meeting is protected by law from disclosure to parties who may want to use it against the healthcare facility in court.
However, that legal protection does not extend to allowing a healthcare provider to threaten or coerce an employee into committing perjury or fraud. Perjured testimony in an administrative inquiry or in a court of law and fraudulent documentation of fabricated data in a patient’s healthcare record are serious crimes.
The quality assurance peer review process is intended to evaluate the safety, quality, processes, costs, appropriateness and necessity of healthcare ser-vices. That essential process will not be undermined by a ruling that attempted or actual criminal wrongdoing in the course of the committee’s functions cannot be shielded from disclosure by the statutory quality assurance peer review privilege. The aide’s statement that she was asked to alter the chart will come in as evidence.
COURT OF APPEALS OF TENNESSEE December 11, 2018The son as administrator of his late mother’s probate estate sued the nursing facility for nursing negligence that allegedly caused a fatal head injury from a fall.
There has been no ruling whether the facility’s nurses were negligent. The question of negligence has been put on hold while the courts answer the question whether an aide can testify that her supervisor told her to alter her incident report as to the date and time of the patient’s fall. This took place while the aide and her supervisor were sitting down for a quality assurance committee investigation.
The second of two falls caused the patient’s fatal head injury. The purpose of fictitiously moving the date and time of the second fall back in time was to make it seem there was not enough time after the first fall for her caregiving team to consider and implement changes to the patient’s care plan. The premise was that the first fall was the first indication of a high fall risk potential.
The Court of Appeals of Tennessee ruled that the aide will be allowed to testify as to what went on in her interview for the quality assurance committee, which she revealed when she was contacted and questioned by the patient’s estate’s lawyers. She was asked to commit one or more criminal acts. Fraudulent alteration of a patient’s healthcare record with fabricated information and/or perjury in a court proceeding are serious crimes.
The Court listed at length the measures undertaken by quality assurance and peer review committees that are protected from disclosure in litigation. Those include evaluating the safety and effective ness of a specific patient care episode in light of prevailing standards of care and evaluation of the credentials and competence of the personnel involved. The Court lapsed into sarcasm pointing out that the Legislature nowhere listed fraud or perjury as legitimate functions of a healthcare quality assurance or peer review committee.
Reynolds v. Medical, 2018 WL 6504086 (Tenn. App., December 11, 2018).More references from nursinglaw.com
http://www.nursinglaw.com/quality-review-patient-lawsuit.htm
http://www.nursinglaw.com/quality-assurance-confidentiality.htm
http://www.nursinglaw.com/quality-assurance-peer-review.pdf
http://www.nursinglaw.com/quality-review-privilege.htm