Question: Decriminalization of marijuana wasn’t the only topic of conversation in Naples last week!  There was also a lot of discussion about Patient Safety Organizations (“PSOs”) during The Credentialing Clinic, much of it focused on the importance of the privilege that applies to what is known as “patient safety work product.”  The benefit of this privilege was new to a lot of our registrants (as were the weaknesses in state peer review statutes, which are generally not recognized in federal courts), and led a number of individuals to ask us “how do we get this protection for our credentialing and peer review documents?”

Answer: Putting your hospital in a position to take advantage of the protections provided for under the Patient Safety and Quality Improvement Act (“PSQIA”) requires several steps.

First, your hospital must establish a relationship with an entity that has been certified and listed as a PSO by the Agency for Healthcare Research and Quality (“AHRQ”).  Under the PSQIA, such entities can accept quality and safety information from providers, aggregate and analyze that information, and then provide feedback and guidance to help improve quality and minimize patient harm.  Your hospital must also establish a Patient Safety Evaluation System.  Under the PSQIA, a Patient Safety Evaluation System is the protected space where your hospital collects and manages patient safety and quality information. Generally, the patient safety and quality information that is collected and managed in a Patient Safety Evaluation System and flows between your hospital and a PSO, as well as the deliberations or analysis related to the decision to report (or a decision not to report), is considered confidential and privileged Patient Safety Work Product.  It is important to develop a well-defined Patient Safety Evaluation System, as documentation of such a system will help provide supportive evidence to a court when claiming the privilege.

After the groundwork is laid for the Patient Safety Evaluation System, your organization can then begin to compile and analyze information under the protections of the PSQIA.  In most cases, the privilege for Patient Safety Work Product is much stronger than state peer review privileges.  For example, most employment discrimination claims are brought in federal court.  Since federal courts do not recognize state peer review privileges when a claim of discrimination is made under a federal law, a cardiologist who is challenging a professional review action based on a claim of discrimination could potentially obtain the credentialing and peer review files for every other cardiologist on your staff to support her argument of disparate treatment.  However, if this information qualified as Patient Safety Work Product, the confidentiality and privilege protections under the PSQIA may prevent any such information from being admitted as evidence in any state or federal proceeding.

This is great news for those engaged in credentialing and peer review and we invite you to join us at our next Credentialing Clinic in San Francisco to learn more about how a relationship with a PSO can help provide added protection to the credentialing and peer review information in your organization.