Editor’s note: In a June 28 decision, the First District Illinois Appellate Court reversed the trial court’s ruling, finding that the Patient Safety and Quality Improvement Act clearly preempts state laws or court orders which provide fewer protections. The court disagreed with the Florida Supreme Court’s contrary decision in a similar case.

In doing so, the court stated, “To the extent that the Supreme Court of Florida would find that the Patient Safety Act does not contain an express preemption provision with respect to documents that are patient safety work product, we disagree.”

If a trial court ruling that instructed a hospital to turn over  “patient safety work product” is not overturned on appeal, hospitals in Illinois would be less likely to produce voluntarily reports that help patient safety organizations (PSOs) analyze adverse events and look for ways for hospitals to make patients safer.

The question of what is discoverable to plaintiffs in medical malpractice cases in Illinois stems from a 2013 incident where Rosalie Jones, who was admitted to Ingalls Memorial Hospital in Chicago’s south suburbs for renal failure, died from injuries after prolonged hypoglycemia.

Staff at the hospital were responsible for monitoring Jones’ blood glucose levels. When her level was 203, she received insulin. Later, nurses drew blood for a comprehensive test that showed a blood glucose level of 16, but Jones’ treatment team was not told about the test result and she was later found unresponsive and suffered irreversible brain damage, court records show.

Ingalls staff members submitted incident reports from Jones’ case to Clarity Patient Safety Organization, a federally and state-certified PSO that collects reports from numerous hospitals to identify what changes can be made to improve patient safety and quality of care.

After Terri Daley—the independent administrator of Jones’ estate—sued the hospital for medical malpractice, an Illinois trial court ruled that as part of the discovery process, Ingalls had to turn over the report sent to the Clarity PSO.

The hospital has appealed that ruling to the Illinois Appellate Court, First District, saying the federal Patient Safety and Quality Improvement Act (PSQIA) protects the report because it is a “patient safety work product.” Attorneys for the hospital argue that the trial court improperly relied on state law—the Illinois Medical Studies Act—when it ruled the materials must be turned over.

The Litigation Center of the American Medical Association and State Medical Societies, along with the Illinois Health and Hospital Association, the Illinois State Medical Society and others, filed an amicus brief in the case, Daley v. Teruel and Ingalls Memorial Hospital, supporting the hospital’s position. The friend-of-the-court brief notes that Congress created a safeguarded patient safety process under the PSQIA to encourage hospitals to submit patient safety outcomes without “fear of increased liability risk.”

The PSQIA “creates this safe haven to analyze the past to create a safer future. The collective experiences of hospitals serve as a power catalyst for change,” the AMA Litigation Center brief tells the court. About half of Illinois hospitals belong to a PSO and they rely on the patient safety work product privilege to protect the materials they submit to their PSOs, the brief says.

“These voluntarily created materials should be used for their intended purpose, not as a roadmap for litigation,” the brief states. “If the trial court’s order is upheld … this court will send a message to Illinois hospitals that they should not voluntarily document their self-examination of an adverse situation for the purpose of improving health care.”

The brief also points out that there is discoverable information beyond the patient safety work products that are already available to plaintiffs and that Illinois courts in the past have recognized the protections that the PSQIA gives patient safety work products.

Positive changes from PSO work

PSOs have provided safety alerts and identified best practices for hospitals based on the voluntary reports hospitals across Illinois and across the nation have submitted. In turn, that information has reduced adverse events and errors and improved medication safety and patient personal safety in a wide variety of areas, the AMA Litigation Center told the court.

“Removing this privilege and unwinding the patient safety system created by the federal [PSQIA] will discourage participation in this national patient safety movement and will impede efforts to improve patient care and safe health care practices for citizens of this State,” the brief states.



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