Not all data and reports are eligible to become PSWP. For example, medical records, billing and discharge records, and certain records that are created or maintained outside of a provider’s patient safety evaluation system are not eligible to become PSWP. State mandated reports, such as Sentinel Event Reports, also cannot become PSWP because their underlying transparency requirements conflict with the privileged and confidential nature of PSWP.
Importantly, PSWP is not admissible as evidence in federal or state courts in civil, criminal or administrative hearings. It is not discoverable as evidence in civil and administrative matters, or in virtually all criminal matters, with one minor exception. Additionally, PSWP cannot be discovered or admitted into evidence in connection with any state, federal or local disciplinary proceedings, or proceedings of professional bodies created by state law.
A provider cannot be compelled to produce PSWP in the discovery process of a law suit, but those who possess PSWP can disclose it voluntarily as long as the manner of disclosure meets the confidentiality requirements. Even an improper disclosure of PSWP does not impair the privilege. The penalty for an illegal disclosure is monetary, and there is a safe harbor provision sheltering providers from administrative penalties arising out of improper disclosures in certain cases. Unlike the state systems, PSWP can never be compelled by state medical boards or health departments, regardless of jurisdiction. That means that providers who establish a compliant PSO system are free to assess their errors without fear that honest, forthright, self-critical analysis will become a legal or regulatory liability.
Key benefits are confidentiality and improved patient outcomes
State reporting statutes focus largely on imposing sanctions upon bad actors. Their statutory frameworks create an environment where physicians often choose not to talk or write openly about their observations on areas for improvement, for fear of creating potential legal and regulatory hazards to their practice. PSOs establish a "culture of safety" through a non-punitive private voluntary reporting system.
Most physicians are familiar with the concept of attorney/client privilege or attorney work product doctrine. PSOs create a similar type of professional privilege for physicians, designed to keeps some internal quality control documents out of the hands of juries and regulators that may make incorrect assumptions about patient safety by reviewing candid, self-critical analyses that address quality issues.
By aligning with a PSO, a provider’s internal deliberations and analysis conducted within its own patient safety evaluation system are also privileged and confidential PSWP. As a result, a provider can evaluate its own data before sending it to a PSO, and can also consider a PSO’s recommendations in a completely privileged and confidential setting that avoids the scrutiny of regulators and potential litigants.
The other major benefit of alignment with a PSO for providers involves improvement of patient safety and clinical outcomes. By contracting with a PSO, providers gain immediate access to evidence-based recommendations on quality issues confronting their peers, as well as empirically-based recommendations on how their practices might be improved and made more efficient.
Using PSO “Safe Tables” practitioners can convene conferences and conduct open and candid dialogues, either in person or by telephone, during which unaffiliated providers can share experiences and propose solutions to problems common to the industry. While still obligated to adhere to state and federal mandated reporting requirements, a provider can submit privileged and confidential patient injury and near miss event reports to the PSO to obtain advice, guidance and recommendations which, in turn, can reduce the likelihood of recurrence.
Providers who have previously avoided learning about PSOs, either because of misinformation or lack of time, would be well served to take a closer look at the potential benefits they offer, which can include better patient outcomes, fewer errors and near-misses, lower risk of litigation, higher practice profitability and fewer inquiries from disciplinary bodies.
Paul E. Dwyer, JD, and Clint D. Watts, JD, are attorneys at the New Jersey-based law firm, McElroy, Deutsch, Mulvaney & Carpenter, LLP.