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
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.
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, firstname.lastname@example.org.