On Monday, a potential client’s wife called about a medical malpractice case. I told her we would need to review the medical records in order to evaluate the case. We discussed this a bit further, and we both agreed that it would be better if she or her husband attempted to obtain the records instead of us.
Today, her husband called and said he could not get the records. He said he spoke to someone in client services at the hospital, and she said he could not get his own records. I was somewhat in disbelief because a patient is entitled to his medical records. However, I had a feeling that he misunderstood so I asked him to give me the person’s name and number so I could call and confirm what I was thinking.
I did call the woman at the hospital, and my suspicions were confirmed. He had not been speaking with someone in client services. He had been speaking to a risk manager, and she did not refuse to allow him to get his medical records. She refused to allow him to obtain the incident/investigative report regarding his incident. At that point, I let her know that we knew we couldn’t have that information, but that we did want the medical records. I then called the client and explained the situation to him.
Why couldn’t we get the incident/investigative report? Well, such a report constitutes what is called a “quality assurance” document. What does that mean? It means that the record is confidential, and it is not discoverable or admissible in court. Hospitals and doctors don’t have to give incident and investigative reports to patients or their attorneys as long as they meet the definition of a “quality assurance” document. Here is the statute which governs the confidentiality of these records:
Confidentiality of accreditation, quality assurance credentialling materials, etc.
(a) Accreditation, quality assurance and similar materials as used in this section shall include written reports, records, correspondence, and materials concerning the accreditation or quality assurance or similar function of any hospital, clinic, or medical staff. The confidentiality established by this section shall apply to materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body and to any individual who is an employee, advisor or consultant of a hospital, clinic, medical staff or accrediting, quality assurance or similar agency or body.
(b) All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities. No person involved in preparation, evaluation or review of accreditation, quality assurance or similar materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation, or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation, quality assurance or similar function or other person involved therein. Information, documents, or records otherwise available from original sources are not to be construed as being unavailable for discovery or for use in any civil action merely because they were presented or used in preparation of accreditation, quality assurance or similar materials nor should any person involved in preparation, evaluation, or review of such materials be prevented from testifying as to matters within his knowledge, but the witness testifying should not be asked about any opinions or data given by him in preparation, evaluation, or review of accreditation, quality assurance or similar materials.
(Acts 1981, No. 81-801, p. 1409.)
Is this fair? Is it right? Does it make sense? Not to me. If someone is injured or killed in a hospital or by a doctor, and that institution conducts its own investigation and determines that it’s employees caused the injury or death, shouldn’t that be discoverable by the injured party or his family? Shouldn’t that information be admissible in court? Isn’t that relevant? How many cases have gone to trial where the hospital or doctor won the trial when their own investigation determined they were at fault? We will never know because of the provision above.
It may be argued that eliminating this quality assurance confidentiality provision will lead to no investigations into such incidents. If that’s the case, why not pass a law which requires such an investigation? Why make such important information confidential? It makes no sense unless you realize that the medical community lobbied for such a provision which makes pursuing a medical malpractice case much more difficult.