State Supreme Court opts for disclosure in a medical negligence case testing the bounds of what secrets hospitals should be allowed to keep.
The irony of Leasa Lowy v. Peacehealth is that Leasa Lowy was a staff physician at St. Joseph Hospital in Bellingham when she was admitted to the hospital as a patient.
Her stay did not end well.
Because of what she alleges was an improper infusion procedure, Dr. Lowy sustained nerve damage in one of her arms, an injury that now prevents her from practicing her medical specialties involving obstetrics, gynecology and surgery.
As a result of what happened to her at St. Joseph’s, Dr. Lowy brought a civil suit asserting negligence against the hospital. To try to advance her case, she and her lawyers sought information relating to instances of intravenous (IV) “infusion complications and/or injuries at St. Joseph’s Hospital for the years 2000-2008.”
Peacehealth, which owns St. Joseph’s, declined to release the information, citing state law as the basis for withholding it. And indeed, in RCW 70.41.200—otherwise known as the state’s “quality improvement statute”—there is a section that seeks to protect hospitals and other medical organizations from the liability hazard of having to turn over information they gather as part of their quality improvement programs. The rationale is this: while the state has a law to encourage information gathering and analysis that could improve quality (and hopefully prevent malpractice) it didn’t want hospitals to be more vulnerable to malpractice suits by allowing plaintiff’s access to the information it was requiring hospitals to collect and analyze for the very purpose of preventing malpractice.
In this case, though, Dr. Lowy had reason to believe her injuries were caused by negligence and she wanted records she knew the hospital possessed that would shed light on that question. Moreover, she had what amounted to insider knowledge. Dr. Lowy says the information was provided to her by a co-worker. St. Joseph’s says she got it because she was a member of the hospital’s quality and safety leadership team.
But regardless of how she got it, the information she viewed was a list on a computer screen of 170 intravenous injuries at the hospital. The list itself was privileged under the state statute because it was compiled for quality control purposes.
But Dr. Lowy and her lawyers argued that the underlying information used to generate the list was fair game, and the fact that it had already been used to create the list existed removed the argument that it would be far too cumbersome to assemble and produce.
In its decision, today, the Supreme Court held 8 to 1 for Dr. Lowy, reasoning that because the information she’d requested had been compiled for internal review, and not external review purposes, the statutory exemption did not apply.
“She (Dr. Lowy) is asking the hospital to turn over relevant documents everyone agrees are easily locating by the hospital’s review of the database,” Justice Tom Chambers wrote for the court majority. “The principals of liberal discovery are as important in construing statutory provisions as court-created protections, like the (attorney) work product doctrine. Here the hospital can easily produce the unprotected information without revealing any information protected by the statute. The requested information is completely external to the hospital’s ‘careful self assessment,’ and thus there is no reason the hospital should be permitted to deny the request.”
On the broader principle of discovery versus protection for a hospital’s self-examination of practices, Justice Chamber’s wrote that the legislature did not intend that the statute “be a fortress where a hospital can hide the keys to locating discoverable information.”
In his dissent, Justice James Johnson wrote that the distinction the court majority drew is not one that the legislature intended.
“The essence of the court majority’s analysis,” Justice Johnson wrote, “is that the privileged..database should be used to provide Lowy information to use in her malpractice action because she cannot find it elsewhere. RCW 70.41.200 (3) does not permit this. Moreover, the statute at issue does list exceptions, only none of them apply here. The public interest in candid hospital review procedures to improve health care should prevail over a plaintiff’s demand for information from the most convenient source.”
—Tim Connor for the Center for Justice