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April 8, 2013
By a Lee Smart attorney
Statutory protections do not prevent internal review.
Washington’s Supreme Court has held that hospitals should examine documents created for their quality assurance programs to respond to discovery in a malpractice action.
In Lowy v. PeaceHealth, et al., 174 Wn.2d 769, 280 P.3d 1078 (2012), the plaintiff was a staff physician admitted as a patient. She alleged serious permanent impairment to her arm from an improper intravenous (IV) infusion procedure. Lowy contended that the hospital had a systemic problem with IV infusion injuries because she had seen a list on a computer screen giving details of IV injuries with patient names replaced by identification numbers.
This information had been created for quality assurance purposes pursuant to a statutory mandate requiring hospitals to “maintain a coordinated quality improvement program for the improvement of the quality of health care services rendered to patients and the identification and prevention of medical malpractice,” RCW 70.41.200(1). This statute further provides that “information and documents, including complaints and incident reports, created specifically for, and collected and maintained by, a quality improvement committee are not subject to review … or discovery or introduction into evidence in any civil action…[.]” RCW 70.41.200(3).
During discovery, Lowy sought information on the instances of IV infusion complications or injuries from the years 2000-2008. Patient records could not be searched electronically. The hospital moved for a protective order on the grounds Lowy’s request was unduly burdensome since it would require a hand search of patient files, even though the files were maintained electronically.
Lowy suggested the hospital review its quality assurance database, and specifically the list of 170 IV injuries she had seen, to locate relevant patient files. The hospital acknowledged the list’s existence, but argued it was protected from discovery pursuant to RCW 70.41.200(3). Lowy maintained the statutory scheme did not prevent the hospital from conducting an internal review of its quality improvement committee information to locate discoverable information. The trial granted the protective order, and the Court of Appeals reversed.
The Washington Supreme Court affirmed the Court of Appeal’s ruling. The Court reasoned that the purpose of the peer review statute is to encourage health care providers to candidly review the work of colleagues to improve health care. As part of the statutory scheme, the legislature protected certain quality improvement records from discovery, reasoning that if the information obtained by the quality improvement committee could be used against the hospital, it would create a disincentive for hospitals to report and candidly evaluate the information.
The Court determined the plain language of RCW 70.41.200 protects only information created specifically for, and collected and maintained by, a quality improvement committee for quality review. The Court ruled the statute is not intended to prohibit the hospital from reviewing its own records. An interpretation of the statute prohibiting such review would defeat the very purpose of the statute.
Noting that the phrase “review or disclosure” was added to address the potential for non-judicial, external review of quality assurance program information at patient request. The Court determined legislative history validated its conclusion that the legislative purpose was to shield the inner workings of the quality assurance committee, but permit access to information that goes into and comes out of the committee. It held only committee discussion, self-analysis and materials created specifically to aid in those endeavors are subject to the privilege.
The hospital contended that the list was created specifically for the quality improvement committee; that it could not be required to consult the privileged list to produce non-quality improvement committee records that are discoverable.
The Court held that RCW 70.41.200 grants two privileges: the first shelters communications within the quality improvement meeting and the second protects documents and information similar to attorney work product. The Court noted that even attorney work product may be discoverable with a showing of need, if the production provides clues as to the existence or location or relevant facts.
The Court ruled that the hospital’s database provided the actual location of relevant facts and that Lowy was not asking the hospital to produce the protected database, but only relevant documents easily locatable by the hospital’s review of the database. The hospital could easily produce unprotected information without revealing any information protected by the statute.
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