PSO WATCH/ALERT! Need for Clear Policies and Educated Defense Counsel

September 16, 2013    |   By: Calevir

New Kentucky Appeals Court Decision Underscores the Need for Clear Policies and Educated Defense Counsel

(Mercy Health Partners-Lourdes, Inc. v. Kaltenback, No. 2013-CA-000053-OA, entered July 11, 2013)

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The Center’s participants have heard us preach about defining clear boundaries for their Patient Safety Evaluation Systems (PSES) and implementing clear PSES policies.   Courts will examine these policies closely in determining whether information generated as part of patient safety activities can be protected as Patient Safety Work Product (PSWP).   They will also examine the path of purported PSWP to see if the organization has followed its own policies for protected information.

A new case from the Kentucky Court of Appeals[i] offers a perfect example.   The case accepts that the federal Patient Safety and Quality Improvement Act protections exist, and that they may offer protection where Kentucky law does not.   (In Kentucky, peer review protection does not apply in medical malpractice cases.)   However, the court found that the PSQIA protections did not apply in the case before it.   While the opinion is short on details, the court noted that (1) the requested information was reported to a Board committee, (2) the information was reported to the Joint Commission, but (3) neither of those is a listed PSO.   The court’s clear but unstated implication is that the information was never reported to a PSO.   The opinion does not cite the language of any relevant facility policies.

The hospital also tried to claim protection for information that the PSQIA clearly does NOT protect, including learnings that were shared throughout the organization and new polices.   While the court did not address the issue, this overreaching may have diluted the hospital’s credibility on its other protection arguments.

The case brings up important issues, which the CPS urges PSO participants to keep in mind:

  • Protection depends on a nexus between the protected work and reporting to a PSO.   Background work on an issue can be considered functionally reported, but there must be a connection between the work and a reported event or events.
  • Providing information to the Joint Commission or internal committees does not waive protections for PSWP if the sharing complies with applicable de-identification provisions (for the Joint Commission) and workforce confidentiality provisions (for committees).
  • Carefully educate your defense counsel about the PSQIA and your policies, so he/she can knowledgeably defend your protections without falling back on state law provisions or old federal ones.
  • The products of the patient safety work, such as new policies, educational programs or shared lessons learned, cannot be protected PSWP.   They become part of the new way things happen in the organization.   Courts may, however, prevent their use as evidence under state law provisions that keep later improvements from being used as evidence of negligence.     Discuss that possibility with defense counsel.

Summary and comment provided by Center for Patient Safety Project Manager, Kathy Wire, JD, MBA, CPHRM.

[i] Mercy Health Partners-Lourdes, Inc. v. Kaltenback, No. 2013-CA-000053-OA, entered July 11, 2013.


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