Are Hospital Records That Document Adverse Events Privileged?

Facts of the Case

Joseph Heverin, a man with Huntington's chorea, was in the care of Dover Behavioral Health System (DBHS) when he died on February 25, 2008. Mr. Heverin choked on food while eating lunch in the DBHS cafeteria. He was transported to an outside hospital where he was pronounced dead by the attending physician. On the death certificate, the medical examiner, Dr. Judith Tobin, certified that Huntington's chorea caused Mr. Heverin to have difficulty swallowing. She further certified that he died of asphyxia brought on by food aspiration. Delaware law requires the Office of the Chief Medical Examiner (OCME) “to investigate the cause and manner of death of any person who dies when unattended by a physician or in any suspicious or unusual manner” (Dover, p 162, citing Del. Code Ann. Tit. 29, § 4706 (2009)).

As part of its investigation, OCME requested a copy of the incident report, which detailed the circumstances surrounding Mr. Heverin's death. DBHS denied the request. OCME then requested all medical records and internal documents pertaining to Mr. Heverin. DBHS produced all medical records, but maintained that two reports were created for internal peer review and, as such, were privileged documents.

Ruling and Reasoning

The court held that, whereas the peer-review privilege prevented OCME from obtaining the specific document created as an incident report intended for peer review, the privilege does not prevent OCME from performing its statutorily mandated duty to investigate deaths unattended by a physician. OCME retains its broad power to investigate death. It may “subpoena witnesses, administer oaths and affirmations, and take affidavits from witnesses as to the facts surrounding Heverin's death” (Dover, p 169).

The peer review exception is meant to encourage discussion among medical professionals after adverse events. To encourage these discussions, the Delaware General Assembly legislated immunity from legal liability to members of peer review boards who participate in such discussions and to organizations that perform such reviews. As long as participants act in good faith, they are immune from “claim, suit, liability, damages or other recourse civil or criminal” resulting from their participation (Dover, p 163). The law promotes unfettered discussion of a health care facility's procedures and of individual compliance with professional standards. Without limitations on liability, the legislature feared that critical scrutiny of bad outcomes would be “chilled by the fear of litigation over the analysis itself” (Dover, p 164).

OCME appealed the district court's refusal to enforce the administrative subpoena and claimed that neither document it sought to review fell under the peer review exception. OCME believed that one of the subpoenaed documents was not privileged, because it was shared with an outside agency, the Office of Health Facilities Licensing and Certification (OHFLC). OHFLC is a state agency within the Department of Health and Human Services that was created by federal law to manage complaints and incidents at federally certified Medicare agencies. OHFLC has the right to conduct both off-site and on-site review of incidents occurring at Medicare-funded facilities. DBHS is a federally certified Medicare agency and as such is subject to peer review by OHFLC. OHFLC's review of the Heverin incident report was privileged.

In addition to the privilege conferred to people and agencies participating in the discussions, the privilege was also extended to documents produced as a result of the meetings. Such records are not considered public and may not be subject to subpoena or discovery. This privilege applies only if the records remain within the peer review committee; if shared outside the committee, the privilege is waived.

OCME argued that the technician, who composed the incident report that was reviewed by DBHS's internal peer review committee, was not a member of the peer review committee. They stated that the document was merely “furnished to but not created by the peer review committee” and as such the document was not privileged. The court found no merit in this argument, affirming that information, data, reports, and records, both furnished to and created by the peer review committee are privileged.

OCME further argued that its duty to investigate a death is a state-mandated function that trumps the statutory peer review privilege under Del. Code Ann. tit. 24, § 1768 (2005). The court found no basis for this statement under Delaware law and drew distinctions between the Delaware statute and similar statues in Pennsylvania and California, which have allowed subpoena of peer review materials in specific circumstances.

Discussion

The peer review privilege codified in Del. Code Ann. tit. 24, § 1768 protects records created for internal and external peer review from subpoena and discovery in civil, criminal, and administrative proceedings. The legal immunity granted to individuals and agencies participating in the peer review process promotes the public policy of critical examination of errors in medicine. Limitations on discovery of peer review records do not inhibit an investigatory agency like OCME from performing its statutorily mandated duty to investigate deaths.

Allowing OCME to read the incident report prepared by Mr. Heverin's attendant could have saved time and money in the investigation. However, it is likely that even if the report were supplied, OCME would have had additional questions for the attendant, necessitating an in-person interview or responses to interrogatories. The peer review privilege does not protect the attendant from investigation of the incident. As such, restriction of peer review documents does not seem to place an undue burden on the investigation of deaths by OCME.

In contrast, there are cases in which a government agency's failure to provide information stymies an investigation. As David Kocieniewski notes in “I.R.S. Sits on Data Pointing to Missing Children” (New York Times, November 13, 2010), each year about 200,000 children are abducted by family members. In some cases the abductor files a tax return claiming the child as an exemption and provides a mailing address for the return. Privacy laws protecting taxpayer information prevent it from being shared with criminal investigators at the state and local level, where most cases are investigated. If the case is in federal court, a judge may subpoena the information, but such requests are rarely granted. Specific legal exceptions allow the IRS to turn over information to agencies involved in determining child support payments and whether an individual qualifies for federal benefits. A similar information-sharing exception is needed to help locate missing children claimed as an exemption on an IRS tax return. If the IRS were to provide critical information not otherwise available, such as the preferred mailing address of a person accused of kidnapping, public policy would be served by speeding the recovery of missing children and reuniting families. These contrasting situations of governmental investigation of death and kidnapping illustrate the challenge balancing the public policy interest in identifying wrongdoers and individual privacy interests.