Legal Update: Impact of Recent Cases on Patient Safety Work Product
There have been two recent decisions, one from the Kentucky Court
of Appeals in University of Kentucky v. Bunnell and another from
the Florida Supreme Court in Edwards v. Thomas which should be of
great interest to PSOs and their member providers.
The primary purpose of this presentation is to unpack the Bunnell
decision and to identify the arguments and step-by-step analyses
which should… More prove helpful to PSOs and participating
providers in all jurisdictions when defending against subpoenas
and other requests for PSWP. In addition, the Court further
analyzed and concluded that there are no external obligations
under the Medicare CoPs and QAPI or under The Joint Commission
accreditation standards and therefore reports and analyses
collected in a provider’s PSES for reporting to a PSO are PSWP
and therefore need not and cannot be disclosed unless there is an
available disclosure exception.
In Bunnell, the Court again addressed a hospital’s position that
an adverse event report it prepared subsequent to a patient’s
death was PSWP and therefore not discoverable. In a very detailed
opinion, the Court thoroughly reviewed the relevant Kentucky
statutes and determined that, contrary to the plurality decision
in Tibbs, the report was not made to meet an “external
obligation” and therefore qualified as PSWP.
Finally, the presentation will cover the Florida Supreme Court’s
decision in Edwards. While not a Patient Safety Act decision, the
Court’s extremely broad interpretation of a patient’s ability to
access information relating to any and all adverse events under
Amendment 7 calls into question whether the Court believes that
any information can be protected. A review of the decision and
some options and arguments to consider will be discussed.
Michael Callahan, Partner with Katten Muchin Rosenman LLP