Quality Review: Documents Are Not Shielded By Privilege.
Legal Eagle Eye Newsletter for the Nursing Profession
October 2017
The law which defines the peer review quality assurance privilege does not protect documents from discovery in a civil case against a healthcare provider that were generated before the committee knew about and authorized an investigation of a specific incident.
If the documents were prepared in response to a specific request from the committee it would still be necessary for the hospital to document specifically when and in what manner the committee met to discuss the specific matter, when the investigation was authorized that led to the creation of the documents, when the documents or the investigator’s impressions and recommendations were considered and when the matter was put to rest by the committee.
The hospital further needed to show that the documents in question were prepared solely for use by the committee for quality assurance and performance improvement, and not also for some other purpose like risk management or for use by legal counsel in the event that litigation ensued.
APPELLATE COURT OF ILLINOIS September 5, 2017The mother was admitted to the hospital at thirty weeks and gave birth to her premature infant the same day. The infant died two weeks after birth.
About a month later the mother contacted the hospital’s patient advocate to express her concerns about the care she and her baby had received in the hospital. The patient advocate was the liaison to the medical staff quality committee but was not a committee member herself. Fearing the mother’s complaints would become a matter for the committee she spoke with two obstetricians on the hospital’s staff, with one about the mother’s obstetric care and with the other about the baby’s neonatal care. The physicians’ impressions apparently were not favorable to the hospital.
The patient advocate prepared notes of her conversations with the physicians in an electronic format on the computer. When the medical staff quality review committee had its regular meeting the next month the patient advocate’s notes were discussed. After the mother sued the hospital for malpractice the mother’s lawyers used the civil discovery rules to demand access to the patient advocate’s notes. The hospital refused based on its interpretation of the medical peer review quality assurance privilege.
The Appellate Court of Illinois ruled the patient advocate’s notes were not shielded from discovery and the hospital had to make them available to the lawyers. The patient advocate prepared the notes before being directed to do so by the medical review quality committee specifically for this incident. Further, the hospital was not able to make it clear for the Court that the patient advocate’s investigation and her notes pertained to improvement of the quality of patient care, as opposed to risk management. Risk management per se is not a privileged or protected subject unless attorney-client privilege comes into play once litigation is imminent or has been filed.
Grossheusch v. Hospital, __ N.E. 3d __, 2017 WL 4866498 (Ill. App., September 5, 2017).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-assurance-privilege.htm