Risk managers take note: Plaintiffs’ attorneys are seeking—and winning—access to materials long considered privileged, including handwritten notes taken in the course of incident investigations.
NORFOLK, Va. (7/31/14) – Hospital and other health care risk managers should review their policies and procedures in light of a trend in which plaintiffs’ attorneys are winning access to materials long considered protected and internal, said veteran health care attorneys with the national law firm LeClairRyan.
“The trend toward increasing disclosure of risk management materials includes documents pertaining to investigations of incident reports and unanticipated outcomes,” said Patrick J. Hurd, Senior Counsel. “That means fact gathering as a result of an incident or other problem associated with potential patient harm may indeed be subject to disclosure—a troubling trend for risk managers in the health care field.”
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.
“Procedurally, the hospital did exactly as expected—it filed a motion to quash the subpoena and complained that the materials were protected,” said Hurd, who is based in LeClairRyan’s Norfolk and Washington, D.C., offices. “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.”
Other cases also reflect this trend toward disclosure, said Donna L. Foster, a Virginia-based shareholder in LeClairRyan’s Richmond office. “One example is a May 2014 ruling from the Circuit Court of Hampton (Va.), which highlighted the potential discoverability of EMR audit trails and metadata,” Foster said. In addressing the plaintiff’s attorney’s request for the defendant hospital’s policies and procedures, Foster noted, 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 health care litigation.
And indeed, reports suggest these procedural tactics are becoming more commonplace in medical malpractice cases across the country—especially in the long-term health litigation arena, Foster said.
In light of this trend, risk-management professionals in the health care field should make sure their training, policies and procedures always stick to the facts, Hurd advised. “While the likes of mental impressions, conclusions, opinions or legal theories can be redacted, you cannot assume that they will be,” he said. “If the purpose of an investigation is to gather facts in the wake of an incident, then the training, policies and procedures should hew closely to that purpose, never straying into matters of conjecture or opinion.”
Another important step is to ensure a clear demarcation between investigative fact-gathering and review or analysis related to opportunities for improvement of quality care and patient safety, Hurd added. “Health care organizations must preserve their ability to take factual information and place it in the hands of quality review organizations,” he said. “This process necessarily involves evaluating, assessing and even opining about how changes in policies, procedures, processes, training, education and credentialing could improve patient safety and quality of care.” While plaintiffs’ attorneys will continue to chase after such privileged information, Hurd noted, the industry must strongly resist these efforts.
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Colorado, Connecticut, Maryland, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.