No PSQIA Protection for Reports Used for Internal Quality Improvement Purposes
The Court of Appeals of North Carolina held that a hospital’s “SAFE” reports were not protected by the Patient Safety and Quality Improvement Act because they were used for multiple internal purposes (including routine quality improvement purposes and operational review) and the hospital had not met its burden to show that they were created for the purpose of reporting to a Patient Safety Organization (even if they were, eventually and ultimately, reported to a PSO). The court also held that several physicians could be deposed regarding their knowledge of any incidents or complaints regarding a defendant physician, though they could not be compelled to testify about any information they gained about such matters solely through their participation in medical review committees, as such information would be protected by the state’s peer review privilege statute. McGehee v. Farber
Physician’s Challenge to Privileging Action Subject to Arbitration Under Employment Agreement
A Maryland appeals court held that a physician’s claims of discrimination, retaliation, breach of contract, and conspiracy, against a health system and its medical staff leaders, were subject to the arbitration clause of his employment contract, since all of the claims were related to his employment, even if they did not all relate directly to his employment contract. Amongst other things, the court noted that the medical staff leaders acted as agents of the health system and the physician’s claims against the system and physician leaders were interrelated. Kyere v. Durand
Treating Patient Despite No Hospital Privileges Is a Malpractice, Not General Negligence, Claim
An appellate court in California upheld dismissal of a general negligence and elder abuse claim brought against a physician who allegedly snuck into a hospital, at the request of the patient’s surgeon, to adjust the patient’s pain pump – despite not having clinical privileges at the hospital. According to the court, the general negligence claims were actually malpractice claims in disguise and, in turn, were subject to the statute of limitations (which had already run). Further, the court rejected the elder abuse claim on the basis that there was no allegation of fraud, maliciousness, recklessness, or abuse (even if there was a claim of unconsented touching). Nichols v. Alghannam
No Bad Faith or Malice, where Whistleblowing Is One Cause, but Not the Only Cause of Adverse Privileging Action
In a whistleblower lawsuit, brought by a hospitalist alleging his privileges were revoked after he raised concerns about the hospital’s policies governing the Rapid Response Team (“RRT”), a Texas appeals court held that the hospital was entitled to immunity from injunctive relief under Texas law due to the jury’s finding that there was no malice or bad faith underlying the adverse privileging action. Notably, the court rejected the physician’s argument that the jury’s findings should be overturned as inconsistent, in light of the jury’s additional finding that the physician’s whistleblowing was one cause of the hospital’s decision to take action on the physician’s privileges. The court emphasized that while the physician’s reported concerns may have been a cause, the jury’s findings showed that it believed the reported concerns were not the only cause (and that the jury felt there was no bad faith or malice underlying the action). Rios v. Chi St. Luke’s Health Baylor Coll. of Medicine Med. Ctr.