On December 11, 2012, Gloria Quimbey presented to the emergency room at Mountain View Regional Medical Center with stroke-like symptoms. The emergency room physician, pursuant to the hospital’s “Code Stroke” policy, ordered a tissue plasminogen activator (tPA). While the tPA was being prepared in the pharmacy, Ms. Quimbey underwent a CT scan, which revealed that she had not suffered a stroke. Upon reviewing the CT scan and conducting a follow-up examination, the ER physician decided not to administer the tPA to Ms. Quimbey; however, the tPA was still delivered to the emergency department. When Ms. Quimbey was transferred to the telemetry unit for observation, the tPA was also sent to the unit and the Medication Administration Record in the unit listed the tPA order. Later that night, a travel nurse in the telemetry unit administered the tPA to Ms. Quimbey without looking for a doctor’s order and without consulting the doctor or charge nurse in violation of the hospital’s protocol. As a result, Ms. Quimbey died.[i]
As the case winds its way through discovery, enhanced in scope by plaintiff’s allegations of organizational negligence, the parties are testing the limits of peer review protection under New Mexico’s statute and the Patient Safety and Quality Improvement Act. As a consequence, the Federal District Court in New Mexico has issued several discovery rulings that can be instructive for medical malpractice litigants.[ii]
Before I get to the discovery rulings, here is a brief overview of the two main statutes that govern the Quimbey discovery disputes:
New Mexico’s Review Organization Immunity Act (ROIA) – The ROIA protects information acquired by a review organization to achieve several enumerated purposes, which include improving the quality of healthcare and reducing morbidity and mortality. The statute excepts information available from other sources as well as information that is proven to be critical to a party’s case.
Patient Safety and Quality Improvement Act (PSQIA) – The PSQIA protects Patient Safety Work Product, which includes data, “assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization.” The Agency for Healthcare Research and Quality maintains a list of approved patient safety organizations (PSOs).
To the extent that these statutes conflict, the Quimbey court found that the PSQIA preempts the ROIA.[iii]
On to the disputed documents . . .
Although the court tackles the various categories of contested documents in two separate rulings[iv], I will address them under the following categories: (1) protected by the PSQIA, (2) protected by the ROIA, and (3) not protected.
1. Documents Protected by the PSQIA
The Medication Variance Occurrence Log – Despite the failure of the hospital’s risk manager to declare in her affidavit that the medication variance occurrence log was patient safety work product, the court found that the documents were exactly the type of information one would expect a hospital to gather and produce to a PSO. The court further notes that each page of the log bears the designation “CHS PSO, LLC Confidential patient safety work product document.” Since the documents are protected under the PSQIA, the court does not consider potential avenues for discovery under the ROIA, because the PSQIA preempts the ROIA to the extent that the latter would allow production.
Incident/Accident Reports (not involving the incident subject to litigation) – Like the medication variance occurrence log, the court found that since the incident and accident reports were designated as “CHS PSO, LLC Confidential patient safety work product document” and contained the type of information the court would expect the hospital to produce to a PSO, they were protected under the PSQIA and not discoverable. It is, however, worth mentioning that in making this decision, the court cited to a Florida case that was later overturned.[v]
2. Documents Protected by the ROIA
Stroke Committee Meeting Minutes and Meeting Agenda – Since the hospital contended, and the defendant did not dispute, that the committee documents were prepared solely to carry out the purposes of peer review organizations, the court found that they were protected under the ROIA and not subject to the ROIA’s critical information exception.
Stroke Program Satisfaction Data Compilation – The court accepted the hospital’s contention that the documents were prepared solely to carry out the purposes of peer review organizations and ordered the data non-discoverable under the ROIA and not subject to a critical information exception.
Joint Commission Preparation Committee Meeting Minutes – The hospital claimed that the committee’s purpose is to monitor patient care and the hospital environment in accordance with Joint Commission standards and that the committee minutes were prepared solely to carry out the purposes of peer review organizations. The court distinguished the committee meeting minutes from information actually transmitted to the Joint Commission and found that they were protected under the ROIA.
Outpatient Pulse Report – The court, describing the pulse reports as treatment information and data compiled to disseminate statistical information with the goal of keeping healthcare costs reasonable, agreed with the hospital that they were prepared solely to carry out the purposes of peer review organizations, and therefore, protected from discovery under the ROIA.
3. Documents Not Protected
Stroke Data Spreadsheets and Compilations – The hospital alleged that the documents were protected under the ROIA. Regarding the Core Measures Stroke Data Complication, the court held that because it was prepared for the purpose of submitting information to the Joint Commission, and the Joint Commission was not a “review organization” under the ROIA, the documents were discoverable. Regarding other stroke data compilations and spreadsheets, the court agreed with the hospital they were protected under the ROIA, but found that the documents were probative of the hospital’s notice of deficiencies in its stroke program and allowed their discovery under the critical information exception.
Emails – Several categories of emails were requested, all of which the court found were discoverable. Specifically, the court found that emails responding to a Joint Commission inquiry and those containing a survey completed by staff were discoverable in light of the risk manager’s failure to address the emails in her affidavit and the fact that after an in camera review, it was not apparent that the emails contained data acquired by a peer review organization to carry out its functions. Regarding emails relating to the hospital’s “Compliance 360” program, the court found that in the absence a PSQIA privilege assertion, it was not clear that the documents were produced solely for peer review purposes and entitled to protection under the ROIA. The court further noted that even if they were protected under the ROIA, they were discoverable under the statute’s critical information exception.
Letter to the Texas Board of Nursing – The court disagreed with the hospital’s assertion that the letter was drafted in anticipation of litigation, but opined that it was drafted to report the defendant nurse’s conduct. There was no discussion of privilege under the ROIA or the PSQIA, and the court ordered production of the letter.
Meaningful Use Measures – The court disagreed with the hospital’s assertion that the meaningful use measures were protected under PSQIA and ROIA, and instead found that because they were compiled to submit information to the Centers for Medicare and Medicaid, which is not a “review organization” under the ROIA, they were discoverable.
Three Takeaways for Healthcare Providers
1. In addition to legally asserting a privilege under a peer review law or the PSQIA, a risk manager or other qualified employee of the healthcare organization should provide detailed factual support for the asserted privileges. The court mentioned on several occasions that the risk manager’s affidavit was either silent on the issue of privilege or made a conclusory statement regarding entitlement to a privilege.
2. Make sure that documents submitted to a PSO bear some designation regarding their submission status and the name of the PSO. This designation should appear on each page of the document.
3. Do not discuss peer review information or information contained in the patient safety information system via email. If feasible, use separate internal communication systems for peer review and patient safety information.
[i] Quimbey v. Community Health Systems, No. 14-0559 (D. N.M. filed May 9, 2014).
[ii] See Quimbey v. Community Health Systems, 222 F. Supp.3d 1038 (D. N.M. 2016) (order on motion to compel discovery); Quimbey v. Community Health Systems, No. 14-0559 (D. N.M. Nov. 22, 2017) (order on discovery motions).
[iii] See Id.
[iv] See Id.
[v] S. Baptist Hosp. of Florida, Inc. v. Charles, 178 So.3d 102 (Fla. Dist. Ct. App.2015), reh’g denied (Nov. 24, 2015) (holding that incident reports were protected under the PSQIA); overturned by Charles v. S. Baptist Hosp. of Florida, Inc., SC15-2180, 2017 WL 411333 (Fla. Jan. 31, 2017) (holding that incident reports, which were required by Florida law, were not protected by the PSQIA)