July 2, 2018
An Illinois hospital has successfully appealed a trial court order requiring it to produce confidential and privileged Patient Safety Work Product (“PSWP”) documents and finding it in contempt for failure to do so. In a June 28, 2018 decision, the First District of the Appellate Court of Illinois upheld the hospital’s claim of privilege for the documents at issue and held the Patient Safety and Quality Improvement Act of 2005[1] (the “PSQIA”) would preempt any state law or order that would otherwise require their production. The decision is a positive step for Patient Safety Organizations (PSOs) across the country.
BACKGROUND
The Plaintiff, Terry Daley, the administrator of an estate pursuing a wrongful death action, filed a motion to compel the documents from Ingalls Memorial Hospital, after the Hospital declined to produce them in discovery. The motion to compel was granted by the Cook County Circuit Court. The Hospital continued to decline to produce based on the protections outlined in the PSQIA and filed a motion for reconsideration. When the motion for reconsideration was denied, the Hospital sought a “friendly” contempt order, thereby providing a way for appeal to the state appellate court. The court found the Hospital in contempt and imposed a sanction of $1.00. The Appellate Court ultimately agreed with the Hospital, finding the documents are PSWP and that the federal statute preempts the circuit Court’s order of production.
The documents at issue include incident review reports relating to the decedent’s care generated after the event at issue, which were reported to the Hospital’s contracted PSO, Clarity PSO. The Hospital provided an affidavit explaining that the documents were prepared solely for submission to the PSO and were reported through its healthcare safety portal, all as part of the Hospital’s efforts to improve patient safety and quality of health care. The Plaintiff argued that Illinois broad discovery rules required their production, and that the Plaintiff needed all facts to pursue the case at issue. Plaintiff’s counsel argued that without seeing the documents, there was no way to confirm that all factual information had been provided for the malpractice case to go forward. The trial court had previously ordered the Hospital to confirm that all factual information in the reports had been otherwise made available to the Plaintiff. On appeal, the Hospital also welcomed the amicus curiae support of the Illinois Health and Hospital Association, American Medical Association, Clarity PSO, Alliance for Quality Improvement and Patient Safety, and the Illinois State Medical Society.
RULING AND ANALYSIS
The Court ultimately agreed with the Hospital that the documents at issue were PSWP and worthy of the mandatory confidentiality and privilege protections prescribed by the federal statute. Specifically, the documents were an “amalgamation of data, reports, discussions, and reflections, the very type of information that is by definition patient safety work product.”[i] The Court found the affidavits signed by the Hospital’s general counsel confirmed that the documents were prepared for submission to the PSO, were reported to the PSO, and otherwise met the statutory requirements to be PSWP, not subject to any exceptions.
Recognizing that the confidentiality and privilege protections are necessary for any PSO to have effective participation, the Court discussed the policy arguments behind the creation of the PSQIA, including Congress’ intent to create a system of voluntary, confidential, and nonpunitive sharing of health care errors to facilitate and promote strategies to improve patient safety and the quality of health care. The Court explained that health care providers would be reluctant to share such sensitive patient safety information without privilege and confidentiality protections to alleviate concerns that the information would be used against them. These protections are “the foundation to furthering the overall goal of the statute to develop a national system for analyzing and learning from patient safety events.”[ii]
The Plaintiff, along with amicus curiae support of the Illinois Trial Lawyers Association, argued that allowing these documents to remain privileged would allow health care providers to “hide valuable information and impede the truth-seeking process.” The Court responded that nothing about the patient safety documents at issue prevent a medical malpractice plaintiff from discovering facts that underlie the PSWP. Plaintiffs can still obtain medical records, as Plaintiff did in this case, have their experts analyze and make opinions about the records, and depose involved healthcare providers. As long as a health care provider is fulfilling its external record-keeping and reporting requirements, the provider’s creation of “supplementary information for purposes of working with a patient safety organization to improve patient safety and the quality of health care, [the] provider is furthering the Patient Safety Act’s objectives while not preventing the discovery of information normally available to a medical malpractice plaintiff.”[iii]
The Court distinguished these facts from the circumstances in Charles v. Southern Baptist Hospital,[iv] a decision by the Florida Supreme Court in January 2017, but not without disapproving the preemption findings of that holding. The Court pointed out that unlike Florida, Illinois state law does not require the reports at issue to be maintained or externally reported, so the documents were not subject to the statutory exception the Charles court relied upon. Despite the distinction, the Court clarified that the PSQIA “clearly” includes an express preemption clause that shows Congress’ intent to supersede any state law that would require the production of PSWP.[v] “But to the extent the Supreme Court of Florida would find that the Patient Safety Act does not contain an express preemption provision with respect to documents that are patient safety work product, we disagree.”[vi]
MOVING FORWARD
The decision is a significant decision for PSOs, both those in jurisdictions where similar documents are not required under state law, as well as those where courts continue to struggle with the interaction between the PSQIA and conflicting state law.The analysis and policy explanations offer insight to other courts juggling a plaintiff’s need for discovery with the importance for such federal confidentiality and privilege protections to be upheld. Upholding these protections is both because such confidentiality and privilege protections are required and for candid participation of health care providers.
At this early stage, it is unknown whether the Plaintiff will seek appeal to the state supreme court. Other cases to watch include two federal declaratory judgments against the Department of Health and Human Services, pending in the Middle and Northern Districts of Florida, filed by Tampa General and Shands Memorial Hospitals, respectively. An advisory on the status of the Florida federal litigation is forthcoming.
If you have questions relating to recent PSO litigation, or any other aspects of PSO development, strategy, implementation, and policies, please contact a member of Hancock Daniel’s Patient Safety and PSO’s Team.
The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson PC, is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson PC be liable for any direct, indirect, or consequential damages resulting from the use of this material.
[1] 42 U.S.C. § 299b-21, et seq.
[i] Daley v. Teruel, et al., 2018 IL App (1st) 170891, at *18 (June 28, 2018).
[ii] Id. at *7 (citing Patient Safety and Quality Improvement, 73 Fed. Reg. 70, 741).
[iii] Id. at *25.
[iv] Charles v. S. Baptist Hosp. 209 So. 3d 1199 (Fla. 2017). For more information on Charles, see February 7, 2017 client advisory.
[v] Daley, 2018 IL App (1st) at *27-*28.
[vi] Id. at *29.
