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The Limits of the PSWP Privilege

The Patient Safety Work Product (PSWP) privilege overrides other federal, state, tribal, and local laws. Discovery disputes are rarely about the privilege itself. Most revolve around whether an item is PSWP. The thorniest issues arise around whether a document should be eligible for PSWP privilege—particularly whether it was prepared for a purpose other than reporting to a Patient Safety Organization (PSO).

Recently, the Kentucky Court of Appeals weighed in on whether an incident report was protected as PSWP. The court of appeals found that the incident report in question was PSWP. The judge, recognizing the conflicting and confusing laws, guidances and court decisions, did much more than just provide an answer to that request. The 73-page decision provides an excellent analysis of what is and what is not PSWP, in particular, analyzing when a record should be categorized as prepared for a purpose other than reporting to a PSO.

The published opinion and order is available on the CHPSO web site at http://www.chpso.org/post/kentucky-court-appeals and is worth reading in its entirety. It is quite detailed and the brief summary in this article cannot convey all the nuances involved in the decision.

There are three broad categories of information prepared for a purpose other than reporting to a PSO that would render the information ineligible for PSWP privilege:

  • Original patient records
  • Records created to comply with a legal mandate
  • Business records outside the PSES

The court assessed whether the document belonged to one of these three exceptions. The second of the three, compliance with a legal mandate, received the most discussion.

Original Patient Records

In testing for original patient records, it noted that the incident report was created post-care and was not necessary or useful for the patient’s care. Its subject matter was the event, not the patient. These factors helped the court conclude that the incident report was not an original patient record.

Records Created to Comply with a Legal Mandate

In the discussion regarding records created for compliance with external requirements, the court separated those records the organization was compelled to disclose by “police powers” from those the organization voluntarily makes in response to mandates.

Regarding compliance with “police powers” of mandatory disclosure, the court concluded that “the report in question was not mandated by state or federal laws or regulations…” An example of a mandated report would be the document prepared to send to the state in compliance with its serious reportable event reporting requirement.

The court recognized that some mandatory disclosure obligations can arise “after the fact”, such as when regulators come to the hospital and require documentation, and discusses how that does not affect the initial decision that the information was PSWP. Rather, the court describes how the obligation can be met without using PSWP, such as recreating the information or dropping out of the Patient Safety Evaluation System (PSES) a report that had not yet been transmitted to the PSO.

The court then discusses voluntary recordkeeping, such as following the Medicare Conditions of Participation (COPs) in order to receive Medicare and Medicaid payments. The court notes that “there is no direct mandatory reporting, disclosure or recordkeeping obligation as a condition of participation…” Rather, the COP requirement to collect information on events and analyze some “is satisfied when the hospital assures the Centers for Medicare & Medicaid Services, HHS, that its quality assessment and performance improvement program is established and in operation.” The court then goes on to describe some of the ways in which a hospital can demonstrate that without using PSWP, and concludes that the COP requirements are not grounds for excluding incident reports from PSWP.

Business Records Outside the PSES

The discussion in this section is brief, and considers whether the hospital had prepared the report with the intent of submitting it to an outside entity or that the report existed separately from the PSES prior to its submission to the PSO. In this case, the court found no evidence of either.

Further Questions

CHPSO convenes a quarterly, national Legal Counsel Discussion Group intended for healthcare organizations’ legal counsel and risk managers, where discussions like this are held. To join, click here. For any questions or comments, please contact CHPSO, info@chpso.org.