• The Gist: The records reviewer and the party requesting records should be aware of the verbiage and case holdings pertinent to medical records.
By Dan Clifford, publisher
© 2008 The Medical-Legal News
In a Tennessee case a district court has held that medical records made in the normal course of a nursing home’s business are not privileged from discovery merely because they are handed off to a peer review committee or used as factual background in reporting to higher regulatory authorities.
The case, Brown v. Sun Healthcare Group, Inc., 2008 WL 1751675 (E.D. Tenn. 2008), gives four examples of how records are not immune from plaintiffs’ eyes. Defendants raised four theories to try to block plaintiffs from acquiring medical records, but were defeated on all.
• First, the court said: “reports prepared in the normal course of business by defendants relating to the care of Mr. Brown are not protected merely because they have been provided to a peer review committee.” The defense had argued that a Tennessee Peer Review Law privileged the records.
• The court next found that a somewhat tricky distinction can exist between copies made by a peer review committee and the copies’ originals. The court said: “We interpret the ‘otherwise available’ language [from the peer review law] to mean that information that is available from a source other than the committee does not become privileged simply by being acquired by the review committee.” Thus, when an alternate source for peer-review documents exists, the non-peer review documents are not privileged and the defendant may have to produce them. That is, while copies of non-privileged records may become privileged (because the copies were made by the review committee), the originals that came from outside the committee would not be privileged. The court noted: “Rather, the copies of the documents in the possession of a peer review committee are protected, but the documents may still be obtained from the original source, the defendants.”
• The defendants in Brown then argued that a state health data reporting act (HDRA), which required the filing of corrective actions or unusual events with the state, protected the records. The court said no and said that only the reports filed with the state are immune, not records supportive of the reports. The court said: “Accordingly, the Court finds that any incident reports, corrective action reports, or amendments to either, filed with the Tennessee Department of Health are protected under the HDRA, but only those specific documents.”
• The defendants lastly tried to claim the records were privileged under part of the Social Security Act (42 U.S.C. § 1395i-3(b)(1)(B) and § 1396r(b)(1)(B)) relating to the internal records of quality assurance committees. The court again ruled against the defendants by reasoning that this act protected a quality assurance committee’s own records, but not those submitted to it in its investigations. The court said: “Accordingly, the Court finds that the privilege created under the SSA applies only to the committee’s own records, including its minutes, internal working papers, and statements of conclusions, not to documents generated outside the committee and submitted to the committee for its review.
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