Is Your Root Cause Analysis Protected from Discovery?

Discoverable or Protected

I read an interesting article about a court case in Kentucky. A hospital was sued over a patient’s fall. The plaintiff wanted the root cause analysis report because it included factual information that might not be available in the patient’s medical records. The hospital claimed that the report was not discoverable because it was protected under the federal Patient Safety and Quality Improvement Act (PSQIA) and Kentucky’s peer review privilege statute.

The hospital prevailed. Read the full opinion HERE.

However, in the article, there was an exception:

“By contrast, the Court concluded that the hospital’s incident report that was prepared contemporaneously, and required under state regulatory reporting obligations, was not privileged under either the PSQIA or Kentucky’s peer review statute. Because the incident report was generated as part of mandatory compliance with state reporting rules rather than for the retrospective peer review process itself, it falls outside the scope of both the federal patient safety work product privilege and state peer review protections and is discoverable in litigation.”

Thus, hospitals should distinguish between reports created for internal safety evaluations and those required by statutes and regulations.

Are Your Reports Discoverable?

If you are not in the healthcare industry, what does this mean to you?

Well, have you considered whether your root cause analysis/incident reports are discoverable in your industry and at your company? Are they protected by the attorney-client privilege?

To start understanding this question, your best asset is your corporate counsel. They can advise you on state regulations and industry practices.

For another example of a root cause analysis deemed discoverable, see THIS ARTICLE.

And for more ideas about keeping your root cause analysis out of court, read THIS ARTICLE.

Learn More About Root Cause Analysis

If you want to learn more about advanced root cause analysis, consider attending the 5-Day TapRooT® Advanced Root Cause Analysis Team Leader Training. For upcoming public TapRooT® Root Cause Analysis Courses, see THIS LINK. To schedule a TapRooT® Root Cause Analysis Course at your site, contact one of our Implementation Advisors by CLICKING HERE or calling 865-539-2139.