Independent Probe Findings Not Protected by Quality Management Privilege
A federal district court recently held that the Colorado statutory privilege for quality management information did not protect an investigation conducted by the attending surgeon outside the scope of the hospital's quality management process. While the holding of this case is not surprising, it reinforces the need for prompt response times to adverse events and careful management of the investigation process and information by all individuals involved.
A patient was rendered paraplegic following spinal surgery, and sued the intra-operative professional and his hospital employer for negligent monitoring during her spinal surgery. Zander v. Craig Hospital, D. Colo., No. 09-cv-02121, October 13, 2010. The intra-operative professional's role in the surgery was to continuously monitor and report the patient's somatosensory-evoked potential waveforms to the surgeon. The surgeon proceeded to investigate the cause of the patient's paralysis. This investigation was not performed as part of or in cooperation with the hospital's quality management process. The patient's malpractice attorney attempted to discover information regarding details of the surgeon's investigation. The hospital objected, claiming that the information was protected by the Colorado quality management privilege set forth in C.R.S. § 25-3-109.
The Colorado quality management statute allows health care facilities to establish a quality management program, approved by the state department of public health and environment. Information that is "part of a quality management program" is protected from discovery. But this privilege does not apply to "personal knowledge acquired independently of the quality management information program or function." C.R.S. § 25-3-109(4)(b).
The district court rejected the defendants' assertion of the quality management statutory privilege because the surgeon clearly undertook his investigation outside of the scope of any protected quality assurance activities by the hospital. Accordingly, the surgeon's investigation and any documents prepared are subject to discovery.
As health care reform further drives the focus on quality, and the need to investigate adverse outcomes, hospitals should turn a critical eye to their investigative processes, and the availability of relevant privileges. It is understandable that a physician with an adverse outcome would want to know what happened, and might start investigating. Indeed, a thorough investigation can enhance the physician's knowledge and further his or her quality of care. However, to avoid the risk that the results of an investigation will be used by a plaintiff's malpractice attorney, the investigations, root cause analysis and other undertakings should be performed within the scope of the hospital's established peer review and quality management framework. Hospitals and their medical staffs investigate adverse events to improve the quality of care and help prevent a future occurrence. Hospitals should educate their medical staff members about the processes and committees in place to promote a thorough, confidential investigation, without unnecessarily exposing the results of the investigation to discovery in a malpractice action.
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