Court Rulings Could Squelch Reports of Errors

Providers may be more likely to keep quiet about near misses or medical mishaps if Kentucky lower court rulings, which hospital lawyers say violate the essence of a critical federal statute, are allowed to stand.

That's the view of the Kentucky Hospital Association, which represents 92 non-federal acute care hospitals in the state, and the American Hospital Association, who are together fighting the rulings with an appeal to the Kentucky State Supreme Court.

The issue centers around the intent of the federal Patient Safety and Quality Improvement Act of 2005. Implemented in 2009, the statute offers hospitals and their providers protection from litigation discovery for any safety or mishap information classified as "patient safety work product (PSWP)," as long as the hospital collects that information within the framework of a Patient Safety Organization, which the act specified and defined.

The idea was that doctors, nurses or others who witnessed near misses or medical mishaps, or collected data about such incidents, would be more likely to productively use that information to prevent further mishaps if they didn't have to worry it would go public when lawyers try to sue hospitals and doctors on behalf of litigious patients.

The law was an outgrowth of the 1999 report by the Institute of Medicine To Err is Human, which urged federal lawmakers to pass protection legislation that would encourage hospitals to embrace a blame-free culture of safety. Protected from legal discovery, they could correct system failures and make harmful events much less likely to recur.

To date, some 80 PSOs around the country have sprung up, and are working with hundreds of hospitals around the country.

But two Kentucky lower court judge decisions have limited the scope of those discovery protections just to something called "self-limiting analysis," or peer-review discussions involving an error, incident, safety issue, or near miss, which hospital attorneys say might be too narrowly defined or open to interpretation. 

Data on infections, for example, intended for reporting to a PSO or an agency that deems hospitals worthy of Medicare reimbursement, could become discoverable, and therefore public.

"The Court of Appeals' addition of  'self-examining analysis' to the definition of PSWP abrogates the Act's privilege protections by re-defining and restricting the information that qualifies for the privilege," the Kentucky Hospital Association and the American Hospital Association said in a brief filed last week.

Brian Brezosky, Kentucky Hospital Association general counsel, says that if the rulings, including the addition of the phrase "self-examining analysis," are allowed to stand, such as incident reports on sentinel events filed with the Joint Commission, would not be protected from attorneys' discovery in malpractice cases.

Under the courts rulings definition, that would "not be a group of people (providers) talking about what occurred, and what they need to do in the future to make sure it doesn't happen again.

It's just a report," Brezosky says. "And we think that if a hospital is part of a patient safety organization, "that report in and of itself should be a privileged document. But the Kentucky court has said that's not self-analysis."

Unfortunately, he adds, the federal statute itself doesn't say whether it is or is not, "and therefore that's where the argument lies."

In a statement in its daily briefing Friday, the AHA said that while the lower Kentucky court decisions "recognized that the (Patient Safety Act) preempted state law, they 'failed to apply the Act in the manner as expressed and intended by Congress.' "

The two lower court decisions being appealed are Norton Hospitals Inc. v. Cunningham and Phillip Tibbs, M.D., et al v. Bunnell.

Brezosky says that the authors of the Patient Safety Act had Kentucky and Florida in mind because those states were the only two in the country with no peer review protections against error or near miss information becoming public during litigation. Kentucky courts and politics have always represented "a pro plaintiff environment." he says.

Lexington, KY attorney Wesley Butler, an attorney with Barnet, Benvenuti & Butler PLLC who helped write the hospital associations' appeal briefs and represents one of the plaintiffs, Norton Hospitals, says that peer review protection is essential for patient safety.

"If you have a group of physicians whose primary job is to conduct peer review and have open and honest conversations about one of their colleagues, the physicians in that room are likely to engage in that endeavor differently if they know that the words that they use could be used against them in court.

"Ultimately what you have is professionals, such as nurse practitioners, who would second guess themselves about whether they really wanted to participate in reporting information, or engaging in dialogue because of a fear of being sued or subpoenaed against colleagues or even themselves."