What Should I Do with the Incident Report?

Published on: 11/02/2004

November 2, 2004

There can be little question that incident reports are valuable, but the more important question is for whom are they most valuable. For a facility, the report provides an opportunity for prompt investigation, but to what extent will candid comments or facts contained in a report return later to haunt your facility in the hands of a plaintiff's attorney? You may be proceeding under the thought: Incident reports are privileged, aren't they?  Maybe, and then again, maybe not. Whether they are or not may depend upon the amount of protection with which you cloak them.

Under § 8.01-581.17(B) of the Code of Virginia, communications regarding the fact as well as the scope of any internal investigations that a hospital or facility may have undertaken as part of a complaint-review process are privileged from discovery "unless a circuit court, after a hearing, and for good cause shown, orders the disclosure of such proceedings, minutes, records, reports, or communications." The privilege thus protects "all communications, both oral and written, originating in or provided to such [specified] committees or entities."

Ultimately, whether a facility incident report is protected by the statutory privilege may be a simple matter of geography. The Supreme Court of Virginia has not provided sufficient guidance to Virginia trial courts to result in a uniform application of § 8.01-581.17. As a natural consequence, Virginia courts are divided in their rulings, with some courts extending a broad privilege to any document that is even remotely related to quality assurance, while other courts routinely require production of incident reports.

In the recent Circuit Court case of Shifflett v. Evergreen Medical Investors, L.L.C., et al. , the patient's representative attempted to discover various quality assurance materials. Judge Daniel Bouton denied the representative's request. However, the reasoning that the Judge outlined in his opinion is not reassuring.

After stating the applicable portions of the privilege statute and acknowledging a division among Virginia trial courts, Judge Bouton then expressed his agreement:

      with a number of decisions in which trial judges have found that certain

      types of documents are not protected by the statute. For example, simple,

      factual reports that have been prepared by staff members, employees, and

      healthcare provider about specific incidents, patients, accidents, or injuries

      can be the  subject of a routine discovery request. The statutory privilege

      cannot be relied on to shield or protect incident reports, documents, or

      patient materials simply because they have been delivered to quality

      assurance personnel or placed in quality assurance files.

Judge Bouton reviewed the material sought and declared that it did not contain "reports or documents that have been prepared by employees or staff members resulting from separate incidents or occurrences at the facility that would be otherwise discoverable ." (emphasis added). Although Judge Bouton ultimately found that the requested information was protected pursuant to the statutory privilege and that no extraordinary circumstances existed to warrant an invasion of the privilege, the text of his opinion clearly indicates that a regularly generated incident report would not meet with the same protection in his Court.

Fortunately, the statute does not provide the only layer of protection for incident reports. The attorney-client privilege is a long-standing and venerated element of the attorney-client relationship. The privilege exists to permit the client to disclose all manner of facts to the attorney unhindered by fear of possible future disclosure. In this regard, the privilege is even more expansive than the statutory privilege. Thus, when starting the process of collecting reports concerning the next incident that confronts your facility, it may be advisable to have the reports prepared for and forwarded to the attorney for the facility, particularly if you are located in a city or county in which the courts routinely permit discovery of incident reports. The potential benefits of such an approach include not only additional long-term protections in the form of guided evidence preservation, but also the protection of the report itself.