Incident Reports: The Facts You Include May Not Be Considered Confidential

Posted by Donna Craig in Feb, 2014

Hospitals, clinics, and other health care providers, take note – the information you include in patient and physician incident reports may be discoverable in medical malpractice suits.

 On January 30, 2014 the Michigan Court of Appeals decided Harrison v Munson Healthcare, Inc., which addressed the medical peer review privilege. A patient filed a malpractice lawsuit against Munson Healthcare after she was burned with a bovie during surgery.  The initial page of the incident report indicated, “During the procedure, bovie was laid on drape, in a fold.  Dr. P. was leaning against the patient where the bovie was.”  Although the defendant argued that the report was privileged, the court distinguished between “factual information objectively reporting contemporaneous observations or findings, and ‘records, data, and knowledge’ gathered to permit an effective review of professional practices.”

 In support of its argument, Munson’s attorneys relied on Michigan’s peer review privilege, which exempts from disclosure “the records, data, and knowledge collected by or for individuals or committees assigned a professional review function.”  The trial court and Court of Appeals confirmed that objective facts gathered contemporaneously with an event do not fall within the definition of peer review, and therefore are not privileged, whereas information that summarizes the result of an investigation concluded by a peer reviewer reflected a deliberate review process and is confidential.  The Court of Appeals wrote, “To hold otherwise would grant risk managers the power to unilaterally insulate from discovery firsthand observations that the risk manager would prefer to remain concealed.  The peer review statutes do not sweep so broadly.”

 The Harrison case emphasizes the importance of proper incident reporting protocols, procedures, and education.  If you have questions about Michigan’s peer review privilege as it relates to you health care practice, please give us a call – we’re happy to help!