Summary:
Think "Miranda"
Anything you say can be used against you in a court of Law, for more detailed discussion, see article below
This of course somewhat defeats the purpose of the QI process. (as does criminal prosecution of medical malpractice cases as discussed in the book "Just Culture")
Reference:
Just Culture - Sidney Dekker
http://books.google.com/books/about/Just_Culture.html?id=ZA0uXmtR96MC
Just Culture reference
https://www.bannerhealth.com/NR/rdonlyres/7CE6B13E-118C-47E6-A64B-A682D5B3CB10/0/JustCultureSynopsis62011.pdf
From FOJP newsletter March 2013
Quality Assurance Meeting—Privileged from Disclosure to a Point
During their careers, many physicians will have a patient who, in the course of care, experiences treatment-related complications—and sometimes succumbs to his or her illness. It is always appropriate to evaluate the causes of a patient’s complications and examine whether the care provided contributed to the patient’s deterioration, or whether different care could have changed the outcome.
In these circumstances, reasonable practitioners certainly ask questions, including:
· Would different care have changed the outcome?
· Were there unrecognized problems?
· Was there a failure to rescue?
In these litigious times, many physicians appropriately wonder in what forum they can freely discuss the quality of care provided, without fear of being subpoenaed to court. The answer to this question, in part, is each hospital's quality assurance (QA) program.
Hospitals have QA committees to evaluate adverse outcomes and ask just such questions. This tip of the month discusses the statutory basis for QA committees, the confidentiality afforded, and, of most importance, the limitations of that confidentiality.
Background
In Article 28 of New York State’s Public Health Law (PHL), Section 2805-j (§2805-j) mandates that every hospital “shall maintain a coordinated program for the identification and prevention of medical ... malpractice.” The statute goes on to prescribe that a part of any such program should include “the establishment of a quality assurance committee with the hospital with the responsibility to review the services rendered in the hospital in order to improve the quality of medical ... care of patients and to prevent medical ... malpractice.” Moreover, PHL §2805-j (e) imposes on each hospital in New York an obligation for “[t]he maintenance and continuous collection of information concerning the hospital's experience with negative health care outcomes and incidents injurious to patients, [or] patient grievances.”
Confidentiality—or privilege from discovery or disclosure—for QA meetings is mandated by PHL §2805-m, which provides that the “information required to be collected and maintained” under PHL §2805-j “shall be kept confidential and shall not be released” except as otherwise specifically mandated by law. The statute specifies that information gathered pursuant to a QA function shall not be subject to disclosure under “Article 31 of the civil practice law and rules, except as hereinafter provided or as provided by any other provision of law”—Article 31 being the law that regulates “discovery” in medical malpractice lawsuits. Elaborating on the confidentially of QA proceedings, PHL §2805-m stipulates that “[n]o person in attendance at a meeting of any such [QA] committee shall be required to testify as to what transpired thereat.” The purpose of this confidentiality is to encourage a rigorous self-evaluation by each hospital regarding the causes of adverse outcomes, in order to improve care in the future.
However, there is a very crucial limitation to the scope of the confidentiality conferred by these statutes. In particular, PHL §2805-m excludes defendants in malpractice lawsuits from the confidentiality shield generally afforded to QA activities. This section provides that “[t]he prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.”
This means that physicians who were not involved in providing the care at issue may participate in QA meetings with the assurance that the observations, insights, and opinions they express are privileged and thus protected from disclosure in a medical malpractice lawsuit.
However, statements made by any physician who was involved in providing the care that is the focus of the QA proceeding potentially are not privileged and not protected from disclosure because such an individual (one involved in the provision of care) either is, or potentially could be named as, a defendant in a lawsuit stemming from the treatment.
The purpose behind this denial of privilege is to promote the integrity of the civil justice system. Accordingly, all statements made by a party about the care at issue in a lawsuit are discoverable. In this context, “statements” by a party are not limited to verbal comments delivered during a QA meeting, but extend as well to include written submissions, notes, and presentations prepared for such meetings.
A cautionary word: Although the comments of a person who is not a defendant in a lawsuit might be protected from disclosure when in a QA meeting, privilege may not be assumed outside the QA setting. Therefore, physicians should avoid discussing confidential matters in non-confidential settings.
Conclusion
Candid and confidential discussions by physicians are essential to the success of the QA process, which permits hospitals to carry out critical introspection of adverse outcomes. At the same time, physicians must understand that confidentiality does not protect statements by persons who were involved in providing the care that is at issue. Accordingly, a careful balancing of interests should always be considered in determining who should be involved in any QA process. The hospital’s risk management department should always be consulted concerning QA participation issues.
Full statute information:
http://law.onecle.com/new-york/public-health/PBH02805-J_2805-J.html