A Pennsylvania appellate court rejected the federal healthcare work-product privilege for a hospital’s peer-review reports, including an event report and root cause analysis. Stating that “courts disfavor evidentiary privileges,” the court ordered production of these reports despite a lengthy affidavit from the hospital’s Director of Patient Services detailing the hospital’s relationship with a Patient Safety Organization and the origin and development of these reports. Ungurian v. Beyzman, 232 A.3d 786 (Pa. Super. Ct. 2020). You may read the opinion here.
Something allegedly went wrong during a cystoscopy procedure at Wilkes-Barre General Hospital on March 5, 2018. Following the procedure, a CRNA completed an event report relating to “Surgery, Treatment, Test, Invasive Procedure” in accordance with the hospital’s Event Reporting Policy. About six weeks later, the hospital’s Root Cause Analysis Committee prepared a (you guessed it) Root Cause Analysis Report about the March 5, 2018 procedure and event.
In the subsequent medical-malpractice action, the plaintiff moved to compel the Event Report and Root Cause Analysis Report. The hospital objected, in part, on grounds that the work-product privilege found in the federal Patient Safety Quality Improvement Act protected these reports from discovery.
The PSQIA, codified at 42 U.S.C. §§ 299b–21 to 299b–26, includes a work-product privilege at § 299b–22. This privilege, with limited exceptions, protects from disclosure in federal, state, or local civil, criminal, or administrative proceedings certain “patient safety work product.” The patient safety work product consists of “data, reports, records, memoranda, analyses (such as root cause analyses), or written or oral statements.” But the privilege only protects this patient safety work product if it—
Is assembled or developed by a healthcare provider for reporting to a patient safety organization (PSO) and is reported to a PSO; or is developed by a PSO for the conduct of patient safety activities; and which could improve healthcare quality; or
Identifies or constitutes the deliberations or analysis of, or identify the fact of reporting pursuant to a patient safety evaluation system.
But just as the attorney-client privilege does not protect underlying facts, the PSQIA privilege does not protect underlying medical records and billing and discharge information.
Event Report and Root Cause Analysis
To support its PSQIA privilege assertion and protect the Event Report and Root Cause Analysis from discovery, the Wilkes-Barre General Hospital submitted a lengthy affidavit from its Director of Patient Safety Services. She declared that the hospital has maintained a relationship with CHS PSO, LLC, a patent safety organization, since 2012.
The hospital maintains a patient safety evaluation system—an internal process for collecting, maintaining, and analyzing peer-review type of information that the hospital may report to a PSO. It created the Event Report within this evaluation system, but not the Root Cause Analysis Report.
The appellate court noticed something missing from the Patient Safety Director’s affidavit. The Court rejected the PSQIA privilege for the Event Report because there was no proof that the hospital actually submitted the report to its PSO. The Director of Patient Safety said that the hospital prepared the Event Report within its evaluation system for purposes of reporting to the PSO—which satisfied the privilege’s first element.
But she did not declare that the hospital submitted the Event Report to the PSO—which failed the privilege’s second element. The hospital stated in its appellate brief that it submitted the report to the PSO—but briefs and arguments are no substitute for evidentiary proof, the court said.
Root Cause Analysis Report
The Root Cause Analysis Report suffered a similar fate. The PSQIA privilege expressly applies to reports of an event’s “root cause analyses,” but only if a healthcare provider prepares the analysis for the purposes of reporting to, and actually reports to, a PSO. The Patient Safety Director testified that the hospital (1) prepared the analysis to evaluate the patient’s care and improve patient safety and the quality of care; (2) maintained the analysis within its event reporting system; and (3) submitted the analysis to its PSO.
So, doesn’t that fall within the privilege? The court said no because the Director did not specifically say that the Root Cause Analysis Committee prepared the analysis for purposes of reporting to the PSO—only that it maintained the report for reporting to the PSO. What’s the difference, you ask? The court did not elaborate.
And based on an email between the hospital’s Chief Quality Officer and a physician discussing the root cause analysis, the court found that the hospital failed to maintain the analysis within its patient safety evaluation system. Why did that matter? The court did not elaborate.
Will the Pennsylvania Supreme Court Elaborate?
Wilkes-Barre General Hospital filed a petition to appeal to the Pennsylvania Supreme Court on July 30, 2020. And the amici appear to be lining up to provide commentary. No surprise there. This will be interesting to follow.