Plaintiffs obtaining more records that were previously thought safe
Judge notes the inexorable march to more disclosure’
Executive Summary
A trend in court rulings shows that plaintiffs in litigation against healthcare providers are gaining access to more documents that traditionally have been considered off limits. Access to those documents can be damaging for the provider, so risk managers might need to change practices that generate paperwork.
• Many of the documents in question were previously protected by the attorney-client privilege.
• Notes made immediately after an adverse event are among those that might be accessed.
• Records created on the instruction of your attorney still might be protected.
Plaintiffs in medical malpractice cases and other healthcare litigation continue to win access to risk management documents long considered privileged, including handwritten notes made in the course of an investigation. This dangerous trend means that risk managers should reassess their habits on document creation to avoid showing all their cards to the other side.
Risk managers have long depended on quality or peer review exceptions, depending on the state, and a specific safe harbor under the Patient Safety and Quality Improvement Act of 2005 that protected patient safety work product. That’s changing now, and quickly.
The trend toward increasing disclosure of risk-management materials includes documents pertaining to investigations of incident reports and unanticipated outcomes. That change means fact-gathering as a result of an incident or other problem associated with potential patient harm might be subject to disclosure, which is a turnaround from what risk managers have known for years.
In the latest example, a circuit judge in Newport News, VA, instructed a hospital to turn over internal risk management materials to a patient’s lawyer (George Rauchfuss v. Roger E. Schultz, MD, et al., Case No. CL1302754P-03). While the hospital argued these materials were protected, the judge ruled it was within the now-deceased patient’s right to seek them, says Patrick J. Hurd, JD, senior counsel with the law firm of LeClairRyan in Norfolk, VA.
"Procedurally, the hospital did exactly as expected. It filed a motion to quash the subpoena and complained that the materials were protected," Hurd says. "The judge, however, evaluated the materials and decided several pieces of information must be disclosed to the patient, including that a doctor’s own note showed he had missed a radiologist’s suggestion to check for cancer."
Courts are struggling to interpret the law with the growing use of electronic records and the intertwined computer systems of a modern hospital, Hurd explains. When most documents were on paper, it was easier to distinguish what was on the patient record and what was privileged under peer review or other protections. With the electronic record, those lines are blurred.
"They’re wrestling with this, and it’s been a continuum of decisions," Hurd says. "We’re seeing decisions that more and more documents are hospital records made in the course of ordinary business and the facts not opinions should be available to the plaintiff. This is happening all over the country."
Perhaps the greatest risk from increased disclosure is that healthcare professionals and institutions will become reluctant to report patient safety incidents, says Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM, a patient safety and risk management consultant with The Kicklighter Group in Tamarac, FL, and a past president of the American Society for Healthcare Risk Management (ASHRM) in Chicago. "People say that if we don’t have confidentiality in healthcare organizations, no one is going to report," she says. "How will we keep accurate data on frequency and other trends? We may never notice that the same problem is happening once every week on every unit in the hospital, meaning you have a bigger problem than what people on that unit think is just minor."
The incident report will be most challenging for risk managers who want to avoid disclosure of those notes, Kicklighter notes. Other documents following an incident might be safe if investigations are conducted only at the behest of your attorney, because in most jurisdictions that would make the resulting document protected under attorney-client privilege, she says.
That distinction might mean making a quick call to the attorney to report the incident and asking "Should I go out and investigate this?" When the attorney says "yes," Kicklighter says it provides a foundation for gathering information on the instruction of your counsel, which can make it protected.
Kicklighter also notes, however, that the trend toward more disclosure is not necessarily a bad thing for risk management because it promotes transparency and data sharing. She acknowledges, however, that those are benefits for healthcare in general, and individual decisions on document disclosure can have serious repercussions for the hospitals. (For more on the potential benefits of increased document disclosure, see the story on p. 101.)
Plaintiffs across the country have been whittling away at the evidentiary exclusions protecting healthcare organizations, and Virginia is at the center of the fight. Another example is a May 2014 ruling from the Circuit Court of Hampton, VA, which highlighted the potential discoverability of electronic medical record (EMR) audit trails and metadata. In addressing the plaintiff’s attorney’s request for the defendant hospital’s policies and procedures, the judge in the Hampton case (Eason v. Sentara CarePlex Hospital, Sentara Hospitals, et al. No. CL12-470) went so far as to cite "an inexorable march to more disclosure" of risk management materials in healthcare litigation. A spokesperson for Sentara, a health system based in Norfolk, VA, declined to comment on the case. (See the story below for details on another case involving disclosure of sensitive documents.)
True to the judge’s word, reports suggest these procedural tactics are becoming more commonplace in medical malpractice cases across the country, especially in the long-term health litigation arena, Hurd notes. In light of this trend, healthcare risk managers should make sure their training, policies, and procedures always stick to the facts, Hurd advises. (See the story on p.100 for more on how to protect your documents.)
Though he represents hospitals and other healthcare providers, another attorney in Hurd’s firm is leading the fight for more disclosure. That fight makes Hurd privy to some of the maneuvering used to gain more access.
"He’s trying to get at risk manager’s questions, notes, and other things related to the review of a particular adverse event or unanticipated outcome," Hurd says. "The two main arguments are that it is just a hospital document created in the normal course of business and, therefore, need not be protected, or it’s a medical record."
The medical record theory goes like this: A "medical record" is not just the actual record itself in which notes are made, but rather it includes all the meta data that went into the clinical decisions and actions. That theory means that everything with a digital connection to the patient record is part of the record and the patient is entitled to it.
"If you allow that theory, then handwritten records that were typed or printed out that related to entries reflected on the electronic record can become part of the record too," Hurd explains. "Plus, any evidence that the risk manager went into the record will prompt a demand for any risk management records created or changed after that date. The theory there is that what the risk manager saw in the record influenced the risk management documentation and that connection makes those documents part of the patient record."
Patrick J. Hurd, JD, Senior Counsel, LeClairRyan, Norfolk, VA. Telephone: (757) 441-8931. Email: [email protected].
Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM, The Kicklighter Group, Tamarac, FL. Telephone: (954) 294-8821. Email: [email protected].
