Thought Leadership

Certain records, including investigation reports and PowerPoint slides, can be privileged under the Patient Safety Privilege if certain conditions apply. The Patient Safety Privilege, enumerated in the Medical Care Availability and Reduction of Error (MCARE) Act at 40 P.S. §1303.311, states that documents prepared for the purpose of compliance with section 40 P.S. §1303.310(b), regarding patient safety committee obligations, or reporting sections, such as 40 P.S. §1303.309(4), are privileged if the records also arise out of matters reviewed by a Patient Safety Committee and are otherwise not available from original sources. 

The Patient Safety Privilege was recently tested in Sanders, where there was an adenovirus outbreak in the NICU at the defendant hospital. Following the outbreak, the defendant tasked Dr. Sammons “to find the cause and stop the outbreak,” who reported to the defendant’s patient safety officer, Dr. Boswinkel. Plaintiffs in three separate suits sought discovery regarding the defendant’s investigation. The defendant asserted privilege, which the trial court overruled. The defendant appealed, and the three interlocutory appeals were consolidated before the Superior Court.

On appeal, the court examined numerous records developed during this investigation under the Patient Safety Privilege . The first record at issue was a root cause analysis report, which summarized the evaluation of the outbreak and proposed a plan to prevent recurrence. First, the court found that the report was prepared for compliance with 40 P.S. § 1303.309(4) concerning the duty of a patient safety officer to report to the Patient Safety Committee actions taken to promote patient safety. Second, the court found that the report was received by the Patient Safety Committee in compliance with §1303.310(b) regarding the duty of a Patient Safety Committee to receive and evaluate such reports. Therefore, the report was privileged because it was created for compliance with reporting sections of MCARE, and Patient Safety Committee’s obligations arose out of matters that were reviewed by the Patient Safety Committee and were otherwise not available from original sources. 

The second record at issue were PowerPoint slides utilized throughout the defendant’s investigation. First, the court found that the slides used during meetings and presentations with various departments, committees and personnel were used in fulfillment of Dr. Boswinkel’s duties as safety officer, including under §1303.309(4), to investigate all serious events and report actions taken thereto to the Patient Safety Committee. Second, the court found that the slides were used by the Patient Safety Committee to evaluate the outbreak response by infection prevention and NICU providers and next steps to prevent recurrence, in accordance with the duties of a Patient Safety Committee at §1303.310(b). Therefore, the PowerPoint slides were privileged as well. 

The final records at issue were blogs on the defendant’s intranet and ophthalmology emails regarding new policies resulting from the investigation. The court found that the Patient Safety Privilege did not apply as these records were reports from, not to, the Patient Safety Committee. 

The takeaway here is that certain records, including root cause reports and PowerPoint slides, can be confidential under the Patient Safety Privilege if the materials are: (1) solely prepared for the patient safety reporting sections of MCARE or Patient Safety Committee obligations, (2) arose out of matters reviewed by a Patient Safety Committee, and (3) not otherwise available from original sources. Additionally, a Patient Safety Committee needs to be cognizant of records they provide to their employees, as Sanders shows that these records are not protected. 
 

_{Case Law Alerts, 1st Quarter, January 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2032 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}