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Rumsey v. Guthrie Medical Group, P.C.

United States District Court, M.D. Pennsylvania

September 26, 2019

RICHARD RUMSEY, Plaintiff,
v.
GUTHRIE MEDICAL GROUP, P.C., by and through its officers, agents and/or employees, and ROBERT PACKER HOSPITAL, by and through its officers, agents and/or employees, Defendants.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         Plaintiff Richard Rumsey brings this medical malpractice action against the defendant medical entities, whom I will collectively refer to as “Guthrie.” Rumsey alleges that Guthrie was negligent in failing to test or treat him for a MRSA infection that escalated following an elective procedure.

         In discovery, Rumsey has sought information pertaining to Guthrie’s infection-prevention procedures. Guthrie in turn objects to three discovery requests and previously instructed a witness-Andrew Klee, an infection-prevention specialist for Guthrie-not to answer questions at his deposition pertaining to the same, asserting that these are protected by the patient safety work product privilege.

         The patient safety work product privilege is intended to promote candor in patient safety evaluations from clinicians who may otherwise mince their words out of fear of malpractice litigation.[1] The hope is that enabling blunt criticism will help to stem the staggering number of deaths from preventable medical errors each year- which at least one study estimated was the third-leading cause of death in the United States.[2] All fifty states, the District of Columbia, and the federal government have enacted some form of this privilege.[3] Of those, Guthrie claims privilege under the federal Patient Safety and Quality Improvement Act[4] (PSQIA) and the Pennsylvania Medical Care Availability and Reduction of Error Act[5] (the “MCARE Act”), the latter applicable here through Federal Rule of Evidence 501.

         The PSQIA creates a framework through which medical care providers may engage in privileged peer review of their patient safety practices. First, the provider develops a process for collecting, managing, and analyzing patient safety data; this process is called the “patient safety evaluation system.” The provider then discloses that data to a certified third-party patient safety organization. Ultimately, privilege attaches to the underlying patient safety work product that is prepared for the purpose of disclosing to a patient safety organization as part of a patient safety evaluation system. The MCARE Act provides a similar structure.[6]

         With that overview in mind, I first look to the language of the statutes.[7] The PSQIA defines “patient safety work product” as:[8]

Any data, reports, records, memoranda, analyses (such as root cause analyses), or written or oral statements-
(i) which-
(I) are assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization; or
(II) are developed by a patient safety organization for the conduct of patient safety activities;
and which could result in improved patient safety, health care quality, or health care outcomes; or
(ii) which identify or constitute the deliberations or analysis of, or identify the fact of reporting pursuant to, a patient safety evaluation system.

         The PSQIA goes on to clarify:[9]

(ii) Information described in subparagraph (A) does not include information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system. Such separate information or a copy thereof reported to a patient safety organization shall not by reason of its reporting be considered patient safety work product.

         Essentially, documents generated by the evaluation process are protected, but such information does not become privileged merely by virtue of having been reported. “[T]he critical inquiry is the purpose of creating the information, and the information will only be considered patient safety work product if it is ...


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