Taylor v. Hy-Vee, Inc. — Dec. 2016 (Summary)

PATIENT SAFETY AND QUALITY IMPROVEMENT ACT

Taylor v. Hy-Vee, Inc.
Case No. 15-9718-JTM (D. Kan. Dec. 22, 2016)

The United States District Court for the District of Kansas denied in part and granted in part a pharmacist’s motion to compel a grocery store pharmacy (“pharmacy”) to produce documents, including incident reports and documents related to the return of prescription medications, in the pharmacist’s case involving claims for age and gender discrimination.

The pharmacy refused to produce the requested incident reports, arguing they were privileged as Patient Safety Work Product under the federal Patient Safety and Quality Improvement Act (“Patient Safety Act”).  The pharmacy contracted with a Patient Safety Organization (“PSO”) for the submission of medication errors through the PSO’s software program.  The pharmacy also maintained a record of medication errors, as required by Kansas Pharmacy Act’s Continuous Quality Improvement Program, in incident reports.  The pharmacist contended that the Patient Safety Act’s privilege did not protect the incident reports because they existed separately from the information submitted to the PSO.  The court rejected this contention, instructing that “what a pharmacy ultimately does with data collected and reported to a PSO is not relevant.  Such data is designated ‘patient safety work product’…and there is nothing in the [Patient Safety Act] to suggest data can lose that designation.”  The court continued by noting “[a]lthough it is used as part of defendant’s internal and state-mandated quality improvement system, the court is satisfied that defendant has met its burden of demonstrating that the data was developed for reporting to a PSO” (emphasis in original).  The court concluded that the information was protected by the Patient Safety Act privilege and properly withheld on that basis.

However, the court rejected the pharmacy’s position that documents reflecting the return of prescription medications were unduly burdensome to identify and produce.  According to the court, the documents were solely accessible by the pharmacy and could reasonably bear on the issue of whether the pharmacist’s termination was unlawful.