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NURSING HOME MUST TURN OVER INCIDENT REPORTS. COURT RULES PEER REVIEW PRIVILEGE DID NOT APPLY By Michael Dayton

A Lake Waccamaw nursing home must turn over three incident reports related to the alleged wrongful death of a former patient, the Appeals Court ruled Feb. 20.

The appeals panel rejected arguments that the documents were shielded by the peer review privilege of G.S. Sect. 131E-107.

That statute, which applies to nursing homes, restricts discovery of certain materials in civil actions. It states: “The proceedings of a quality assurance, medical, or peer review committee, the records and materials it produces and the materials it considers shall be confidential and not considered public record.”

Not all documents come within the statute’s sweep, the court said.

“[W]e conclude that the plain language of Sect. 131E-107 protects only those records which were actually a part of the team’s proceedings, produced by the team, or considered by the team,” the court said.

There was no evidence that the three incident reports fit under any of those protections, the court said, and the trial court did not abuse its discretion by granting a motion to compel their production.

The fact that documents might have been considered by the review board was not enough to protect them, the court said.

The case is Hayes v. Premier Living, Inc. (North Carolina Lawyers Weekly No. 07-07-0271, 8 pages). Judge Donna Stroud wrote the opinion and was joined by Judges John Tyson and Linda Stephens.

Raleigh lawyer Stephen J. Gugenheim, who represented the patient’s estate, said it had become common practice among defense attorneys to claim privilege for incident reports “simply because at some point it is submitted to a peer review committee to discuss trends at the hospital or nursing home. In every case we’ve handled, we’ve been forced to file a motion to compel to obtain these reports.”

The Hayes opinion should put an end to that, Gugenheim told Lawyers Weekly.

“The courts are recognizing that not everything is a peer review document just because a peer review committee looks at it,” he said. “There is an otherwise available exception under the rule which basically says that if documents are available or otherwise generated through means other than a peer review committee, they’re not protected.”

The information in an incident report falls under the otherwise available exception, he said.

“Those reports are generally generated by a nurse or other worker who has knowledge of the incident,” Gugenheim said. “That wasn’t something that was generated in a peer review committee meeting. Those are just bare facts that are discoverable in any lawsuit.”

According to the complaint, alleged negligence by the nursing home, Premier Living, caused resident Ina Hayes to fracture her hip and led to her death.

During discovery, Hayes’ estate asked for production of any incident reports that detailed falls by Hayes.

The nursing home acknowledged there were three reports, dated Jan. 10, 2002, Aug. 9 2002 and Aug. 19, 2002, but declined to produce them, pointing to peer review privilege.

In December 2005, the estate filed a motion to compel production. The nursing home responded by moving for a protective order.

Pursuant to the statute, the nursing home had a peer review committee in place. Its “Continuous Quality Improvement Team,” comprised of administrators and health care providers, met on a quarterly basis to assess the home’s quality of care.

But the Hayes documents were apparently not reviewed by the committee. Premier Living administrator Linda Parnell testified that individual incident reports were not usually discussed at the team meetings. She also testified that the nurses who prepared the reports were not members of the team.

Those facts removed the documents from protection under the statute, Superior Court Judge Ola M. Lewis ruled. She said there was no evidence that the incident reports were (1) part of the proceedings of the medical review committee; (2) records and materials produced by the committee; or (3) considered by the committee.

On appeal, the nursing home argued the reports should be shielded because the underlying reason they were produced was for peer review. The appeals panel rejected that argument and affirmed the trial judge’s conclusions.

The Appeals Court also set out these guidelines for deciding whether the privilege applied:

Trial courts must consider the circumstances surrounding the actual preparation and use of the disputed documents involved in each particular case.

The title, description or stated purpose attached to a document by its creator is not dispositive.

A party cannot shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee. — Questions or comments may be directed to Mike.Dayton@nc.lawyersweekly.com.

© 2007 Lawyers Weekly Inc., All Rights Reserved

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