Tinal v. Norton Healthcare, Inc. – May 2014 (Summary)

Patient Safety and Quality Improvement Act of 2005 (“PSQIA”)

Tinal v. Norton Healthcare, Inc., Civil Action No. 3:11-CV-295-S (W.D. Ky. May 7, 2014)

The Tinal opinion, one of the first to interpret the PSQIA, involved a discovery dispute in a lawsuit brought by a pharmacist alleging that the defendant health system unlawfully terminated her employment in violation of the Americans with Disabilities Act. The health system contended that the pharmacist was terminated because she made a series of errors in dispensing medications.   Because the plaintiff had to prove she was treated differently than other similarly-situated employees, she sought root cause analyses and records involving errors of other pharmacists as well as her own in order to show disparate treatment.

Norton refused to produce the requested documents, claiming that they were privileged as “patient safety work product” under the PSQIA. A magistrate judge ordered Norton to produce a privilege log listing each of the documents that it was withholding along with a general description of the contents of the privileged documents. Norton produced a privilege log listing 84 documents. Seventy-seven of the documents were listed as medication event reports. The form on which the reports were submitted was described but the content of each individual report was not. The description included the following sentence: “The unique information with each report is not generally described within this privilege log because the factual relevancy of the event is not an element for the Patient Safety Work Product privilege.”

The plaintiff claimed that the patient safety work product privilege does not apply to her employment discrimination case given the legislative history of the PSQIA and the well-established policy in favor of complete discovery in federal civil rights and discrimination cases.

Norton argued that so long as it processed the information at issue as part of a patient safety evaluation system (“PSES”) for report to a patient safety organization (“PSO”), and the information itself falls within the designation of patient safety work product it is confidential and absolutely protected. Norton further argued that because the language of the PSQIA is plain and unambiguous, there was no reason, and would be improper, for the court to construe its meaning by examining the common law meaning of its terms or referring to the PSQIA’s legislative history.

The court acknowledged that the impetus behind the PSQIA was to limit medical malpractice exposure of health care providers and there is no indication in the legislative history of the Act that Congress had in mind the possibility that the patient safety work product privilege would ever be asserted in the context of a federal civil rights action. Nonetheless, the court held that the documents at issue were privileged under the plain language of the statute.