Court case could stifle collection of patient safety information

Troy Parks
Staff Writer
AMA Wire
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In a case on appeal to the Supreme Court of Rhode Island, the death of an infant has sparked a medical liability suit that seeks access to protected hospital reports designated for patient-safety improvement. Allowing such documents to be subject to discovery could lead to less willingness by physicians to participate in thoroughly reporting events that could help hospitals and medical practices prevent such incidents in the future.

At stake in Rosenthal v. Carron is whether hospital records meant for quality and safety improvement are subject to the discovery privilege of the national Patient Safety and Quality Improvement Act (PSQIA).

The PSQIA was enacted, with AMA support, to improve patient safety, health care quality and health outcomes by facilitating the sharing of patient-safety information. The act establishes federally certified patient safety organizations (PSO) that maintain a network of databases that hold information available for analysis by health professionals for incident-prevention and improvement purposes.

To ensure information is voluntarily contributed to the databases, the PSQIA establishes a nationwide privilege shielding any “patient-safety work product” reported by physicians and health professionals from disclosure or use in federal, state, or local civil, criminal or administrative proceedings unless certain exceptions are met.

In a recent decision in the Supreme Court of Florida, the judge ruled in favor of making these protected reports subject to discovery.

In the case at hand, the Newport County Superior Court held that the plaintiffs were entitled to the Medical Event Reporting System (MERS) reports created by Newport Hospital after the incident even though each are qualified as a patient-safety work product.

“The Superior Court ignored the clear legislative intent of Congress as well as specific statutory language which protects from discovery and admissibility into evidence patient safety information collected in a licensed provider’s patient safety evaluation system for the purpose of reporting to a PSO,” the Litigation Center of the AMA and State Medical Societies and the Rhode Island Medical Society wrote in an amicus brief.

The decision “threatens to significantly undermine and limit the scope of the privilege afforded under the [PSQIA], thereby gutting the nationwide protections that Congress envisioned,” the brief says. The MERS reports at issue were created exclusively for and submitted to Newport Hospital’s PSO. The brief maintains that such records fall within the disclosure privilege created under the PSQIA.

“Despite the fact that Newport Hospital met its burden of establishing compliance with the Act, and produced other nonprivileged records and information that concerned the unfortunate incident … the Superior Court essentially ignored the Act because the judge believed the two privileged MERS reports might have relevant information to support the plaintiffs’ malpractice action,” the brief says. “The Superior Court’s decision will, in turn, dramatically reduce the reporting of such information to PSOs.”

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