Earlier this week I was the keynote speaker for a risk management conference, and then participated in a panel discussion with three med-mal defense lawyers. During our panel discussion, the question/issue was raised about the peer review process and should information from the peer review process be disclosed to a patient or family, or should that information be protected?
Similar question was raised about incident reports….share or not share?
A very interesting discussion ensued, and my defense counsel colleagues made several good points:
1) We protect peer review (and sometimes quality efforts) to make sure the conversations are robust and hopefully lead to safety improvements. Our government has decided that it is not wise to chill these discussions by making documents from such meetings available.
2) In some states, incident reports are discoverable, others not, but in states where incident reports and other documents are discoverable sometimes there can be a “work around” whereby defense counsel can be looped into the process – classifying the documents as attorney work product – or the documents can be reclassified as quality documents. Again, the belief is by providing these protections the discussions and comments will be more honest and robust, leading to safer medicine.
3) Another defense attorney said while he doesn’t have a problem with a patient or family learning about how their care issues were discussed in peer review, sometimes peer review discussions can be more “wide ranging”….clinicians can deviate from the case itself and get into broader issues which are not really pertinent to the case at hand but nevertheless important discussions, which, again, we don’t want to be chilled.
From a patient/family perspective, I respect these points raised by defense counsel. They make sense and are fair points. Unfortunately, the average family really doesn’t care about the bigger societal issues in the immediate aftermath of an adverse event. They simply want to know all the details of their case, and any hint of information about their case being withheld and they will rightly go nuts. People who go nuts are more likely to sue you.
Few specific take-aways from me:
A) In the immediate aftermath of an event, nothing drives a family wild like hearing the following: “No, we can’t share that with you….you will not be seeing that report.” Sometimes clinicians don’t really know what is protected and not protected, so they just get defensive: “I am not at liberty to share that information with you.” Family goes nuts. Instead, our clinicians should say the following: “We will get all the records you are entitled to, we will do it as quickly as possible, and I will help you facilitate that process.” That’s fair and honest.
B) Again, I understand why there may be a need to exclude comments or information not germane to a case, but, the all facts of the case — including facts discussed in peer review — should be shared with the patient or family. If you screwed up, who cares if they see the facts of their case discussed in peer review because you are going to be apologizing and trying to fairly compensate? If you didn’t screw up, sharing the facts and reviews is a way to educate patient, family, and plaintiff’s counsel that the care was good and there is no case. One risk manager responded, “We don’t have to share the actual peer review report and lose our protection, but we ought to put together a separate or different report with the pertinent facts of the case and use that document to educate the consumer and his/her attorney.”
I think what we discussed is a fair, reasonable approach. We developed some good wording – “We will quickly provide you all documents you are entitled to” – and the process of putting together a separate report for the patient/family strikes the right balance between disclosure and still protecting robust quality discussions.
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