Should Hospitals Be Allowed to Keep Medical Mistakes Secret?

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Please rise. Court is now in session. When a

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hospital investigates a serious medical mistake,

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the patient, and often their lawyer, never gets

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to see the results. In this short episode of

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I Strenuously Object, partner Bill Rogel takes

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a closer look at something called peer review

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privilege. That's the legal protection that allows

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hospitals to keep many internal investigations

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confidential. He explains why those protections

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exist, but also asks an important question. If

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the goal is better patient safety, is the system

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actually working? If you or someone you love

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suspects that they may have been the victim of

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medical malpractice, this short episode will

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give you a better understanding of an issue that

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most patients never even know exists. What I

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want to talk about a little bit today is peer

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review In a hospital setting and peer review

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privilege protection. So first of all, I get

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it it's good for patient safety to have doctors

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and hospitals and hospital administrators and

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seven layers of administrative staff and people

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whose entire job is sitting on these committees

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all getting together to do assessments of what

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has gone wrong, why a particular adverse medical

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outcome, and particularly why a place where there

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was malpractice or a place where the system broke

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down, they can investigate that, look into that,

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determine the cause, and figure out what they

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can do about it to make it better. In theory,

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in the abstract, yeah, that's a good thing. We

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want them to be having these meetings. We want

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them to be talking to each other. We don't want

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everyone immediately kind of retreating into

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a CYA mentality where the people who made the

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mistakes and the people who know their mistakes

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feel like there's only harm and nothing to be

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gained by discussing those mistakes openly and

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learning from them. Okay, so I understand that

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that's the environment onto which peer review

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protection is grafted and why there's privilege

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that attaches to it so that you can be open and

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honest and candid, not be worried about the confidential

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proceedings getting out. But two things. First

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of all, boy, does that specifically vindicate

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the feeling that we plaintiffs' lawyers get about

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the way that doctors and medical providers think

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about lawyers in the law. Which is we can't be

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open and candid and honest unless we're sure

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the lawyers are never going to hear it. That's

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not the thought process you want your doctors

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and your medical providers to have as a default

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way of dealing with the world. We live in a society

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which has decided the way that we compensate

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patients who are harmed by the negligence of

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medical providers is through the civil justice

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system. There are other options, I suppose, out

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there. You don't have to rely on civil courts

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to do that. You could just have some government

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administration set up. But that's not what we

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do here. We in the United States have decided

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that the civil court process is the correct mechanism

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to compensate these plaintiffs. And nevertheless,

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the adversarial relationship to that justice

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system is so baked in that we've decided and

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encoded into our statutory law that the only

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way our doctors can honestly talk to one another

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about their mistakes and make plans to be better

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in the future is if they know the lawyers are

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never going to hear about it. But it's not just

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the lawyers not hearing about it. The patient

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never hears about it, right? It seems kind of

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like a crazy place to land that you're going

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to have 30 person committees sit around and review

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the medicine to decide What happened? What went

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wrong? Why did we kill Jane Doe? But we're not

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going to talk to Jane Doe or her family about

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the contents of this. We'll send them a general

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letter that kind of might flag to them that something

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happened that may not have been what was expected

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or proper and give them the name and number of

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a patient safety representative to call that

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they can choose to speak to. not inviting the

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patient, not disclosing the results to the patient.

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Again, there are some theoretical public goods

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that are advanced by letting this conversation

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happen in a maximally honest place. But we should

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at least stop and pause and take stock of the

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fact that it seems weird that the patient doesn't

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get a say in any of this, doesn't have a voice

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in any of this, doesn't have an ear in any of

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this. And all of the focus on what happened to

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this patient is taken away from and out of that

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patient's hands. and the results of that investigation

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are never disclosed to the patient, never brought

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forward to the patient to say, hey, here's what

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happened. Here's what we did wrong, right? Because

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God forbid we do that. Some court somewhere might

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make us compensate you for the injury we caused

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you. And this is really the last place I want

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to talk on peer review here is I have not seen

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any particular statistical evidence that this

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peer review process internally that these hospitals

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are doing is working. We've all seen the studies

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that medical malpractice is the third leading

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cause of death in this country. We've seen how

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bad the numbers are. I have seen scarce little

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evidence that all of the talking that's being

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done in committees, all of this risk management

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and policy and procedure drafting that these

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hospitals are doing as part of this peer review

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process, is actually doing anything to keep our

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patients safer. And that's the goal here. I get

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why, in theory, this whole process makes a lot

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of sense as at least a way to try to make patients

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safer. But I don't think it's working. And I

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do think that it's a problem in basically any

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other profession. If I get together with my boss,

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my supervisor, my co -workers, and we all talk

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about, hey, what went wrong yesterday that caused

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Jack over there to get hurt? that conversation

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becomes subject to discovery later. If I do an

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internal investigation, my internal investigation

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is subject to discovery, review. I have to turn

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it over. I don't get to try to gain all the knowledge

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myself and not share it with the people I injure

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or the people who represent the people I injure.

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We treat doctors differently and specially in

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hospitals differently and specially in this regard.

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And I'm not sure that The theoretical justification

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is being born out in practice that is actually

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working, that it's actually saving lives. Are

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you suggesting a change of some kind? It's a

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little premature. Look, different states can

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do different things, right? The rules aren't

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exactly the same in every place. I think New

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Jersey doesn't have a statute governing this

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at all. In theory, what I'm suggesting is at

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least exploring the option of, hey, look. If

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this peer review stuff, if the layers and layers

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of administrative expense that are going into

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investigating these things after the fact aren't

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materializing into real actual patient safety,

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then either get rid of it altogether or just

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change and strike and reduce the privilege. Let

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that investigation be discoverable. turn it over

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to the patients, the people you injured by the

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malpractice that you're all sitting in a committee

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discussing. You're all sitting around over weeks

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and sometimes months, 10 people, 15 people, 20

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people, 30 people, doctors and administrators

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and patient safety specialists all sitting around

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talking about what happened. At the end of the

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day, you're going to do a root cause analysis.

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You're going to figure out what happened, what

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went wrong, and you're going to make suggestions

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about how to make things better. And then you

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never share that with the person that you found

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in your investigation was injured by malpractice,

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by your hospital facility, doctor, whatever,

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right? The person who was injured is the last

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person to know, the only person who can't know

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because they might file a lawsuit. They might

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be a plaintiff in a malpractice action seeking

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compensation. We wouldn't accept that from a

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driver of a vehicle. where you hit someone else

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at a red light and you get to go home and talk

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to your company car and you go home and you talk

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to your boss and you tell him what happened and

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you try to justify why you didn't do anything

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wrong and he does his own investigation. He looks

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at the car's black box and he talks to his own

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specialist in this regard and they convey a big

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old meeting and later on you, who was injured

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in the accident, never get to hear about it.

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It's specifically legally protected. And there

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are other places where, as a matter of public

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policy, we create evidentiary privilege, protection

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against things being used against you because

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the value of the candor in the relationship is

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important enough to protect. But here, the thing

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that it's supposed to be doing is letting the

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hospitals really address the underlying causes

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of malpractice and make the places safer. And

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again, I just don't see any evidence that it's

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actually working. Not when the malpractice rates

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are happening more and more and it's the third

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leading cause of death in the country. Where

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is the evidence that the whole reason we're letting

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this happen and letting it be abnormally legally

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protected from discovery by plaintiffs who were

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injured by medical malpractice? The only possible

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justification. for not letting a patient who

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was injured know the results of the hospital's

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investigation into how they were injured is if,

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in the long run, it's making other patients down

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the road safer, significantly safer, demonstrably

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safer. And I haven't seen that. What do you think

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it would take to change, to open up this process?

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Because I could see doctors being very protective

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of this confidentiality and fighting back hard.

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Well, they are, and... to some extent there should

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be considered a distinction here between, and

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there is sometimes and there isn't sometimes

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between the doctors and the insurance industry

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in this regard, right? There was a lot of political

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wrangling and lobbying from important constituencies

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and influence groups on all sides, right? Like,

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you know, there are attorneys who are involved

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in lobbying groups and there, you know, It's

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not just the insurance industry that's doing

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it, but the insurance industry and the doctors

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are definitely the ones who have kind of, in

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a standard push all over the country, helped

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be involved in the crafting of these laws ostensibly

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under the guise of patient safety. But as part

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of that, including this privilege that bakes

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in the idea that being honest with the patient

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or being honest with the patient's lawyer and

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telling them what you actually know about what

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went wrong is bad. And then we have to hide that

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or else everyone's just going to circle the wagons,

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CYA, clam up, and nothing will get better. Why

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are those the only two options? Why can't we

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mandate that the hospital have actual investigations

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after something unexpected happens and mandate

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that the results of that investigation be shared

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with the patient? Locally, our hospitals are

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nonprofits. If what happens is money moves from

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the hospital to the patients who were injured

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by medical malpractice, that's a good thing.

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That's what you're supposed to want. The money

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that's going to build new hospital facilities

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because they don't have shareholders to distribute

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their funds to is instead being diverted to compensate

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patients who are injured by medical malpractice.

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Why is that bad? Why is that a problem? Why do

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we... gives so much deference to the hospital's

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economic interest in not paying patients that

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it injures, that it knows it injures, that it

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has a big investigative meeting to determine

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how it injured and why. Thanks for listening

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to this quick take from I Strenuously Object.

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As Bill explained, peer review privilege exists

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to encourage hospitals to openly examine medical

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mistakes and improve patient safety. but it also

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means that patients and their lawyers may never

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see the results of those investigations. Whether

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you agree with Bill's conclusions or not, understanding

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how this process works is an important first

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step if you believe you or a loved one may have

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been harmed by medical malpractice. If you found

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this episode helpful, please subscribe, leave

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a review, and share it with someone who might

00:12:41.789 --> 00:12:44.990
benefit from it. You can find more episodes of

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I Strenuously Object wherever you get your podcasts

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and learn more about Flaherty Farto Rogel and

00:12:50.929 --> 00:12:55.570
Amick at pghfirm .com. Thanks for listening and

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we'll see you next time.

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