The Feds Can't Even Protect Incident Reporting in Kentucky


In a traditional medical negligence action, plaintiffs often seek the production of various peer review files, incident reports and other similar documents related to patient safety and quality improvement.  Although Congress has enacted a statutory mandate exempting such documents from discovery if the provider complies with the Patient Safety Quality Improvement Act (PSQIA) provisions, a recent decision by the Kentucky Supreme Court narrowly limits the application of the exemption provision.

In Tibbs v. Bunnell, the Kentucky Supreme Court ruled that the patient safety work product privilege (PSWP) did not apply to an incident report created by a surgical nurse, even though it was generated through the hospital’s patient safety evaluation system (PSES) per the requirements of the Patient Safety Quality Improvement Act (PSQIA).  Typically, the Court discussed, maintaining the report in the PSES would exempt it from discovery.  However,  the Court noted that “[u]nder Kentucky law, these types of reports are required in the regular course of the hospital’s business, are hospital records, and, thus, are generally discoverable.”  Thus, the Court concluded that the incident report was not PSWP, stating, “[i]nformation is not patient safety work product if it is collected to comply with external obligations, such as: state incident reporting requirements.”

The PSQIA signifies the Federal Government’s commitment to fostering a culture of patient safety.  The Act creates Patient Safety Organizations (PSOs) to collect and analyze confidential information reported by health care providers.  The Act was passed to allay concerns that patient safety improvement efforts are hampered by the fear of discovery of peer review and other patient safety data and information, resulting in under-reporting of events and an inability to aggregate sufficient patient safety event data for analysis.  The Act’s purpose was the driving force behind the Tibbs dissent: “By disregarding the purpose of the PSQIA, and by misconstruing the privilege it creates, the Court undermines Kentucky’s healthcare providers’ full participation in the patient safety system and to that extent, at least, both frustrates Congress’s intent and denies Kentuckians the benefits of PSQIA’s approach to healthcare safety.”

In a decision concerning a discovery dispute in Tinal v. Norton Healthcare, Inc, a federal magistrate for the Western District of Kentucky found that incident reports concerning alleged medication errors were protected PSWP.  Like the incident report in Tibbs, the medication error reports were maintained within the hospital’s PSES and were not disclosed to any outside entities.  Interestingly, the order made no mention of the separately-mandated rationale that was relied upon by the Kentucky Supreme Court.  Rather, the magistrate engaged in a traditional statutory construction analysis in determining that the medication event reports qualified as PSWP under the plain language of the PSQIA since the documents were stored and transmitted via a PSES and were not publicly disclosed or reported.  Importantly, while incident reports may arguably be required by Kentucky regulations, there is no corresponding obligation to disclose or publish such reports to any oversight agency.

Regardless of whether you believe the Tibbs Court got it right, its holding provides an important lesson.  It is imperative for Kentucky healthcare providers to be aware that incident reports, while they may further the purpose of the PSQIA, are not protected from discovery in a malpractice action, no matter how they are created or maintained.  For this reason, great care should be taken in constructing incident reports.  Incident reports should be limited to facts, and statements made therein should be objective.  Additionally, opinions and conclusory statements serve no purpose and are best left out of incident reporting.  Finally, to the extent patient statements are even necessary, they should be put in quotations so it is clear that the statement was made by the patient and is not an established “fact.”

Ellen Houston is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.