Error-reporting confidentiality threatened in court

Troy Parks , News Writer

A case before the Supreme Court of Iowa holds the confidentiality of peer-review materials in the balance. Will the court uphold an Iowa statute meant to maintain confidentiality of such documents in order to reduce errors leading to morbidity and mortality and improve public health?

At stake in Willard v. State of Iowa is whether the Iowa Morbidity and Mortality Study Law (MMSL), a type of peer-review statute meant to keep peer-review information and materials confidential, created a privilege against legal discovery of a hospital’s patient safety network incident report (PSN) and related documents.

Dennis Willard was injured in a motorcycle accident and taken to a hospital in Davenport, Iowa, for treatment. Because of the seriousness of his injuries, Willard was transferred to the University of Iowa Hospital—an agency of the State of Iowa. Willard was under heavy sedation at the time of the transfer and sued the State of Iowa alleging he was handled negligently during the transfer process and suffered further injuries as a result.

During discovery, Willard sought production of various documents pertaining to his care, including the hospital’s incident report. The hospital objected to the discovery, claiming the requested documents were privileged under MMSL.

After hearing testimony from the hospital regarding the nature of the contested documents and ordering an in camera review— review of the hospital’s documents by the judge without their disclosure to Mr. Willard’s attorneys in order to determine the validity of the hospital’s privilege claim—the trial court ordered the production of the PSN report. The hospital filed an Interlocutory Appeal.

In a report, “To Err is Human: Building a Safer Health System,” the National Academies of Sciences, Engineering and Medicine (formerly the Institute of Medicine) determined that at least 44,000 people, and perhaps as many as 98,000 people, die in hospitals each year as a result of preventable medical errors.

The report states that the majority of errors do not result from individual recklessness or the actions of a particular group. This is not a “bad apple” problem; more commonly, errors are caused by faulty systems, processes and conditions that lead to mistakes or failed prevention. The report said that mistakes are best prevented by designing the health system at all levels to make it safer. A key first step to a safer health system is identifying error so that it can be studied.

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    Iowa’s MMSL advances vital public health and patient safety interests in dynamic, robust review and analysis of how medicine can do better in treating and curing disease and preventing death.

    “In order to be able to identify error, everyone—physicians, nurses, hospital staff, etc.—must be willing to report the error,” the Litigation Center of the AMA and the Iowa Medical Society (IMS) said in an amicus brief supporting the hospital’s objection. “The only way people will be willing to do so is if there is a system of protection in place for such reporting.”

    Effective surveillance through data gathering, incident reporting and identification of policies, procedures and other circumstances is essential to assessing medical errors and making the proper changes for prevention of future errors—the MMSL is Iowa’s means of accomplishing this.

    This data and information must be protected by confidentiality. The newly updated AMA Code of Medical Ethics recognizes the unique position physicians have to impact quality medical care and patient safety and advises physicians to “play a central role in identifying, reducing and preventing medical errors.”

    Both as individuals and collectively as a profession, physicians should study circumstances underpinning medical errors. The Code explains that a legally protected review process is essential for reducing health case errors and preventing patient harm and that physicians should establish and participate fully “in effective, confidential, protected mechanisms for reporting medical errors.”

    Iowa’s MMSL is such a mechanism and “the liability protections afforded are in keeping with medical ethics and advance patient and public interest in ongoing, information-based studies of outcomes, procedures, policies and protocol affecting morbidity and mortality,” the AMA and IMS said.

    “Since the inception of the [MMSL], Iowa physicians and medical staff have operated under the belief and practice that information submitted under the statute would be fully protected,” the AMA and IMS said. “The District Court’s decision compelling disclosure of the PSN documents … defies the purpose, policy and express language of the Iowa [MMSL] and if upheld, will act to chill the reporting of information under the statute, therefor harming public health care.”