Wednesday, April 8, 2015

Judge Nealon of Lackawanna County Addresses Novel Issue of Discovery in Medical Malpractice Case

In a recent opinion in the case of Brink v. Marian Community Hospital, No. 2013 CV 1314 (C.P. Lacka.  March 27, 2015 Nealon, J.), Judge Terrence R. Nealon addressed a discovery issue of first impression in a psychiatric malpractice case.  The issue was whether a Sentinel Event Report that is forwarded by a hospital to the private accreditation organization, The Joint Commission, is privileged and protected from discovery by Section 4 of the Peer Review Protection Act of the Medical Care Availability and Reduction of Error (MCARE) Act or the federal Patient Safety and Quality Improvement Act of 2005.

During discovery, the Plaintiff requested documentation from the hospital in terms of its accreditation and requests submitted to other entities for accreditation purposes.  The hospital acknowledged that it was in possession of a Sentinel Event Report but asserted that it was not required to produce the same in discovery.

A Sentinel Event Report is a term defined by the Joint Commission charged with accreditation of hospital and refers to the reporting of what is identified as a "Sentinel Event," i.e. a patient safety event that results in death or permanent harm to the patient.

After reviewing the matter, Judge Nealon ruled that the Report authored by the hospital was discoverable as the hospital had not established that the report was prepared or even reviewed by the hospital's peer review committee.  Also as it was apparent that the Report was not created for the purpose of complying with the MCARE's patient safety reporting requirements, and/or was not reviewed by the hospital's patient safety committee or board of trustees in compliance with their statutory duties under the MCARE Act, the Report was not protected from discovery by the MCARE Act.

The court also held that since the Report was not generated by the hospital for purposes of reporting to or by any federally recognized patient safety organization, the Report was not protected from discovery under the mandates of the federal Act.

As such, Judge Nealon ruled that the patient's estate was entitled to discovery of the Sentinel Event Report.

Anyone wishing to review this decision on this novel discovery issue may contact me at

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