By Robyn Ayres
In a hospital setting, there are usually detailed policies about how bad outcomes or adverse events are handled. But that’s not always the case with most private practices. There are also laws that protect most documents created following adverse events in hospital settings.
Consider this scenario: A patient undergoes surgery at a practice’s outpatient surgery office. The patient has complications upon discharge and dies the following day. In the days that follow, the practice gathers staff involved for a huddle to go over the event and offer emotional support. Two staff members take notes about the meeting and their opinions about the care involved, some details of which are not entirely accurate or flattering. A year later, the patient’s family files a wrongful death lawsuit. The family’s attorney requests any documents pertaining to the death, including written statements and documents created after the event. The practice’s attorneys seek to keep the records privileged for the same reasons that similar documents are often protected in hospital settings, that is, to promote open discussions and improve the quality of care without having the documents used as ammunition in a lawsuit. The court rules that while that was a laudable purpose, no such protection exists under current Virginia law for private medical practices, and the documents must be turned over. The case was resolved shortly thereafter…
So, does that mean that practices should not have procedures in place following adverse events and/or should not huddle to discuss what occurred? No, it does not, but keep in mind that documents generated during that process may have to be disclosed.
Instead, consider having the practice’s attorney present at the meeting to shield the discussion from future disclosure. Advise your malpractice insurance carrier of the adverse event and desire to have counsel present at a quality/debriefing meeting, even if the intent is simply an informal conversation.
Written practice policies are likely also discoverable in litigation, so be sure that all relevant policies are followed during the patient’s care and after the adverse event. It’s not a good look to turn over a policy for how events should be handled in a situation where they were not handled consistent with the policy. For instance, a radiology practice has a policy that two radiologists must sign off on certain breast imaging. A lawsuit is filed alleging a misread on a breast study causing a delay of a cancer diagnosis. The policy is turned over to the patient’s attorney during litigation, but only one radiologist signed off on the read.
If you and/or your practice are served with a lawsuit following an adverse event, resist the sometimes overwhelming urge to discuss it. Those discussions are subject to disclosure, and they often contain conversations that can be misconstrued later, as everyone attempts to get the story straight. The best course of action is to notify your malpractice carrier and wait for your attorney to become involved so that conversations can be protected.
Robyn Ayres joined Goodman Allen Donnelly in 2004 and has devoted her practice to defending physicians, nurses, hospitals and other health care providers in malpractice litigation. She also represents nurses and physicians in licensing and discipline matters before professional boards and advises health care providers on quality assurance issues, patient safety and risk management. goodmanallen.com
