protecting confidentiality of hospital committee records

Protecting confidentiality of hospital committee records

The following drticle was written I-,? Suzanne Johnson, assistaigt counsel f o r the l e g ~ l oJfii-c, Groinp Health Cooperative, PugPt Sound, Seattle.

This opinion letter is in response to inquiries from several hospital committees that have some quality assurance or peer review functions and would like to promote confidentiality o f committee records, minutes, and proceedings, and to protect them from discovery in the event of a lawsuit. This opinion letter should not be construed and is not intended as legal advice. In the event you wish to implement the ideas contained herein, please seek the advice of your attorney.

Introduction

Within the context of a lawsuit, there is no document or information generated at a hospital that will be considered confidential unless its confidentiality is specifically protected by statute or strong public policy. Examples of statutes that protect confidentiality of information generated in hospitals include the physician-patient privilege, the recently enacted nurse-patient privilege, and the statute that pro- tects from discovery the written records, proceedings, and reports of committees that review the quality of patient care or perform peer review functions.

may be helpful to review some aspects of the discovery procedure as it occurs in lawsuits. “Discovery” is the period of time between the initia- tion of a lawsuit and the trial. In King County, WA, the average time between filing the lawsuit and trial is 18-24 months because of the backlog of cases in the court. Dur- ing the discovery period, each side may ask questions and “discover” facts about the other side’s case. Pretrial discovery is used by the plaintiff to fully develop the allegations against the defendant and to investigate the defenses asserted by the defendant. The defendant utilizes discovery to develop the denials to the plaintiffs allegations and the affirmative defenses asserted.

As background information, it

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The parties mu5t conduct discovery pursuant to the rules of the co~irt . The rules cillow discovery by written questions (interrogatories), oral questions (depositions), and requests for production of written documents. For example, the plaintiff in a medical malpractice case may request copies o f any number of documents generated by the defendant hospital, including corporate policies, nursing policies and procedures, personnel files, records of peer review committees or mor- bidity committees, and medical records of the plaintiff. Unless the document requested is specifically protected from discovery by law, copies of the documents must be turned over to a plaintiffs attorneys within 20 days of the date the request is received.

the size of awards and settlements, and the cost of liability insurance continue to increase significantly. The costs of professional liability including settlements and insurance premiums have had a significant impact on hospital overall budgets. In addition to the increasing num- bers of malpractice cases involving care by individual practitioners, there is an increasing emphasis by plaintiffs’ attorneys on the theory of corporate negligence. Not only may a hospital incur legal liability as the result of negligence of one of its employees, but it may also incur liability as the result of its own corporate negligence. As a health care institution, a hospital is required to act reasonably in maintaining proper equipment, providing a safe physical environment, adopting policies and procedures reasonabry calculated to protect the safety and interests of patients, selecting and retaining employees, and taking reasonable steps to ensure that adequate patient care is given. Plaintiffs often attempt to use written policies, procedures, and committee reports to show that the defendant hospital in its corporate capacity has acted unreason- ably. The fewer documents plaintiffs are allowed to discover, the better the defense.

Protecting information and documents generated by the hospital from discovery within the context of the medical malpractice case or other litigation enhances the defense

The number of malpractice cases,

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of the case and make5 it more difficult for the plaintiff to prove its case. In the context of protecting information and documents gener- ‘ited by the hospital from discovery, it is very important to keep in mind that litigation is an adversarial process. That means that each side is expected to vigorously advance its own case and vigorously oppose the other side’s case within the confines of the court rules. It is perfectly legitimate to plan for the process of discovery by structuring committees, their records, proceedings, and minutes to promote their protection from discovery in the event of a lawsuit. It is particularly prudent to plan for this in light of the increasing vigor with which plaintiffs are pursuing the theory of corporate liability.

Written records protected

A state statute, RCW 4.24.250, specifically affords immunity from discovery of the written records, proceedings, and reports of committees that review the quality of patient care and/or conduct peer review activities. If your committee has quality assurance or peer review functions, you may want to review and/or revise your policies and procedures to come within the protection of the statute and to promote protection from discovery.

A particular committee will come within the protection of the statute only if it is a “regularly constituted committee or board of a hospital whose duty it is to review and evaluate the quality of patient care or the competency and qualifications of members of the profession.” In determining whether a particular activity is properly classified as a “regularly constituted” quality or peer review committee, a court would examine the organization and function of the committee in light of the guidelines and standards of external accreditation bodies- for example, Joint Commission on Accreditation of Hospitals (JCAH) guidelines - and the bylaws and internal regulations of the hospital regarding the committee.

Proceedings, reports, written records of the committee, and records of committee members and agents of

Exactly what is protected?

the regularly constituted zornmittec are protected.

recognized th:it iiccess to quality assurance and peer review committee investigations by third parties stifles candor and inhibits constructive criticism thought to be necessary for effective quality review. In other words, a health care organization would be less likely to frankly assess problems in quality if the assessment could be used against it in a malpractice or other lawsuit.

Because this statute created nen7 law, it is strictly construed by the courts. For example, in a recent case, the state Supreme Court held that neither information originally created outside of such a committee’s review action nor the identity of persons involved in an event reviewed by the committee was shielded from discovery simply because that information later became a part of the committee’s records.

I n p;ming th is l~iw, the legislature

Bringing written records under protection

As noted above, in deciding whether or not committee records, reports, and proceedings will be protected from discovery, a court would look at the organization of the committee. It would look at the pur- poses and organization of the committee as reflected in hospital policies, and would also look at the requirements by external accreditation bodies such as JCAH to make sure that the committee is “regularly constituted” and performs quality of care or peer review. In bringing committee reports and proceedings under the protection of the statute, it is most important that the hospital policy that authorizes and describes the committee reflect those aspects that make its reports and proceedings protected, that is, its quality assurance and/or peer review functions.

will promote protection if included in the policy that authorizes and describes the committee:

The following are statements that

rn “The _ _ _ _ ~ ~ committee is a regularly constituted committee of this hospital whose duty it is to review and evaluate the quality of

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pntierit care ( a n d / o r ) the competent> :ind qu;ilifications of memlxm of the ( medi ca 1 , n iir 5i ng ) pro fes si o t i . ’I- h i s committee relie\ o n the protection o i RCW 4.24.250 and, as a result, encourages candor, constructive criticism, ,ind careful self-assessment, which ;ire necessary to effect quality (and/or) peer review.” rn If the committee has been autho- rized by board mandate or policy, the board mandate or policy should emphasize the fact that a primary function of the committee is quality of patient care and/or peer review. The document that authorizes or describes the committee should refer to the board mandate, for example, “This committee has been formed to comply with the board of trustees policy #- - ~~~ (or Bylaw f ~~~~~ J.” Also refer to any general hospital mandates regarding the goal of high- quality care that may be relevant to the committee’s functions.

If there is no policy authorizing your committee, consider having one made. rn If JCAH or any outside professional or accrediting body has required or encouraged the forma- tion of such a committee to conduct quality of patient care and/or peer review, a statement specifically referencing that should be included in the policy authorizing the committee to exist. For example, if JCAH requires that a critical care committee be formed to review the quality of patient care in the Inten- sive Care Unit (ICU), a statement may be made that “This critical care committee operates to meet the requirement and perform the functions set forth in JCAH guidelines as published in the Hospital Accredita- tion Manual #--- quality of patient care in the ICU/CCU setting.” rn In the event that the committee utilizes reports from noncommittee members as part of conducting committee business, the policy that authorizes or describes the committee should contain the statement that “ ~~ persons are acting at the committee’s direction and as agents of the committee in compiling reports (or in providing requested information).” An example would be evaluations that are filled out by various staff members and utilized to perform a peer review function. The

to review the

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policy might statr that “Employees w h ( ) p r( nide \z,r i t ten eva I u ‘it i ( n s of medic;il staff members do so a t the committee’s direction a i d are agent\ of the medical \taff peer revien comni ittee.” rn The policy th‘it authorizes the organization of your committee should include ;i statement that “The confidentiality o f all information contained in the records, written reports, and proceedings of the committee will be carefully maintained by committee members and agents of the committee.’’

Waiver of protection and confidentiality

Even if the confidentiality of cer- tain information is protected by statute, as described above, such protection is easily waived or given away. The protection may be waived if the protected information is dis- closed or released to unauthorized third persons. Unauthorized third persons in this case means anybody outside of the committee itself who is not otherwise entitled to see the information. Disclosure includes both deliberate disclosure or discus- sion as well as inadvertent disclosure. To ensure that protection of committee reports and proceedings is not waived, steps must be taken to keep them in files marked “Con- fidential” in a protected place where access by third persons is unlikely. It is important to caution committee members not to discuss any committee proceedings outside of the committee itself.

Conclusion

In an era of increasing professional liability costs, it is prudent for hospital administrators to actively work to reduce professional liability losses. One way to ultimately reduce such loss is to protect from discovery of records and proceedings of hospital committees that perform quality assurance and peer review functions. This article contains sug- gestions for hospital committees to enhance the likelihood of protecting their minutes and proceedings from discovery in medical malpractice cases. rn

protecting confidentiality of hospital committee records

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