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By Gene A. Blumenreich, JD
AANA General Counsel
Powers & Hall, Boston, Mass.
Key words: Peer review committees, privileged communication, surgeon's liability.
Sometimes the justification for a court's legal decisions is difficult to understand, leading layman to view the law as complicated and arbitrary. Law is supposed to be logical. Law is supposed to reflect those values of society which all share. Law is supposed to provide a fair process and a fair result. How can the law be so complicated? Why do we think decisions are arbitrary?
Like all great structures, the legal system is complex. In an effort to be "fair" the law must accommodate a number of principles which periodically come into conflict. In order to do the greater justice, the law sometimes demands results which are not fair or appropriate for a particular case but which are necessary when you consider the integrity of the system as a whole.
One of the areas in which this conflict can be seen is the principle of "privileged communication" which keeps people who have relevant evidence from testifying at trials. Certain "privileged communications," even if relevant to a case may not be permitted into testimony if there are good policy reasons for excluding them. While these privileges may vary from state to state, many states recognize at least four categories of privileged communication:
1. The privilege for marital communications. In recognition of the relationship of trust and confidence between husband and wife, it would be an unfair invasion of privacy to impose on a married couple the obligation to reveal private conversations. The privilege protects the marriage relationship from too great an intrusion. The law believes it is preserving the institution of marriage which would be greatly strained if spouses had to be careful about what they discussed with each other.
2. Client and lawyer. To permit the legal system to operate, it is important that lawyers be given complete access to the details of their clients' affairs. The law protects these communications.
3. The physician/patient relationship. Beginning in 1828, states have protected information which a physician obtains in attending a patient.
4. Governmental secrets. Persons who hold military or diplomatic secrets cannot be forced to reveal them even when subpoenaed.
The development of judge-made privileges virtually halted a century ago (McCormick on Evidence, St. Paul, Minnesota: West Publishing Company, 1981, page 156). The advent of computers and nationwide networks of information have increased concerns about the individual's rights of privacy and the need to encourage certain conduct which is good for society but which may put the individual at risk. This has resulted in legislation increasing the area of protected communication. The healthcare field is now seeing the development of a new area of privileged communication. The courts are already struggling as they attempt to balance the competing interests of improving healthcare without unfairly exposing hospitals and healthcare workers to increased legal liability.
Peer review
As the nation has increasingly seen itself in the midst of a healthcare crisis, the federal government and various states have adopted peer review statutes designed to require or encourage hospitals to critically look at their procedures to improve patient care. One way in which you can improve care is to examine circumstances where something went wrong, identify what went wrong, and adopt strategies which will keep it from going wrong in the future. How effective will peer review committees be if the information which they obtain is discoverable by persons injured at the hospital? If peer review committees could be forced to testify, they will become plaintiffs' hospital-paid, private investigators. Rather than attempt to discover what went wrong, hospital committees might attempt to conduct their studies in a way designed to protect the hospital instead of discovering the truth.
In Illinois, for example, the Medical Studies Act provides that data obtained by various state agencies, various medical societies or "committees of licensed or accredited hospitals or their medical staffs, including patient care audit committees, medical care evaluation committees, utilization review committees, credential committees and the executive committee used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality or for improving patient care shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care or granting, limiting or revoking staff privileges, except that in any hospital proceeding to decide upon a physician/staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such position access to or use of data upon which such a decision was based." (111. Rev. Stat. 1987, Chapter 110, Paragraph 8-2201)
How far did the legislature intend to go to protect this information? Should the privilege be narrow, applying only to information obtained in a formal inquiry or should anything learned by hospital management which might improve patient care be protected? Balancing the need of the public to protect hospitals while encouraging them to investigate mishaps is the fact that in healthcare litigation, patients very seldom know what happened to them and become dependent on hospital employees to testify. For most laymen, hospitals are too technical and too complicated to understand. Patients may know that something has gone wrong, but they seldom know why. Often, the only way in which a plaintiff can find out what went wrong is to ask hospital personnel. Since the hospital personnel most directly involved are unlikely to volunteer information, it is not surprising that frequently the plaintiff's best evidence results from information revealed to someone else in the hospital. How do the courts balance the right of patients to seek compensation for their injuries while encouraging hospitals to closely examine their mistakes?
These questions were recently considered in the case of Roach v Springfield Clinic (1992 Ill. Lexis 204). The plaintiff gave birth to a child who now has cerebral palsy and irreversible brain damage. The facts of the case are relatively simple and tragic. The plaintiff was examined in the morning by an obstetrician who determined that there was an irregular structure at the cervix. The obstetrician was concerned that there might be a prolapsed cord. Further testing did not indicate that a cesarean section was necessary, but the obstetrician informed the hospital of the potential of an emergency cesarean section.
At 11:30 the baby's heart rate suddenly dropped below normal, going from 140 beats per minute to 50 beats per minute with a 3-minute time span. The resident on duty was called at 11:33 and arrived at 11:35. At 11:35 the obstetrician was paged, and an attempt was made to contact the anesthesiologist. At 11:37, the baby's last heart beat was monitored. At 11:38, the resident took the patient to the operating room. The obstetrician arrived at 11:44, but the anesthesia team consisting of both an anesthesiologist and a nurse anesthetist did not arrive until 11:50, which was 3 minutes after the first incision had already been made under a local anesthetic. The baby was born 1½ minutes after the anesthesia team arrived and administered a general anesthetic. The patient sued the hospital on the grounds that the hospital had not made anesthesia available "on a timely basis."
Obviously, one of the issues in the case was whether the anesthesia was provided on a timely basis. Anesthesia was available within 15 minutes, less than the so-called "30-minutes-from-decision- to-incision" principle. What delay? Where was the plaintiff s case?
During the course of the litigation, interrogatories given to the hospital requested the reason for the "delay" in the arrival of the anesthesia team. The hospital stated that it had no knowledge of any reason. However, the head of the anesthesia department had learned that anesthesia would have been there earlier but for an inexperienced clerk who did not know how to contact the anesthesia team. The plaintiff found out about it when a member of the anesthesia team revealed the cause of the delay in depositions. The information was crucial to the plaintiff's case. Based on time alone, the "delay" was not excessive. The plaintiff's evidence of negligence depended on the explanation that anesthesia could have arrived more quickly but for the hospital's negligence.
Medical Studies Act
The evidence about the cause of the delay was obtained by the hospital (the head of the anesthesia department). Was the head of anesthesia just curious or was he engaged in the kind of official fact finding that the Medical Studies Act was designed to protect? The trial judge held that under the Illinois Medical Studies Act, the information was privileged and, therefore, hospital personnel could not testify as to why there was a delay in calling the anesthesia team.
The court found that the purpose of the Medical Studies Act was to shield information used in the course of internal quality control from disclosure. The plaintiffs argued that the Act should not be interpreted to mean that any information relating to internal quality control was privileged. They argued that the purpose of the Act would be carried out if only that information generated by a process created in the act for internal quality control was protected. The plaintiffs urged the court to hold that the information was not protected because it was not gathered pursuant to the activities of a committee, the method set forth in the statute. The court ruled that the information gathered by the head of anesthesia was protected. The court dismissed the plaintiff's argument that would have limited protected information by ruling that "if the legislature had intended for the privilege to extend only to materials initiated or generated by a committee, it could have so stated" Did the court properly interpret the Illinois Medical Studies Act? Isn't the plain language of the statute exactly what the plaintiff said?
The court looked at the way in which the information was developed. The anesthesia department chairman tried to find out what had gone wrong. Why did it take 15 minutes for anesthesia personnel to arrive when they had been alerted that a cesarean' section was possible? Through interviews, he discovered that because there were one or two new secretaries, they did not know the proper or most effective way to page the anesthesia team. This resulted in the delay in notifying the team.
Should the Medical Studies Act apply to this information? The court found that the inquiry of the chairman of the anesthesia department had been undertaken for the purpose of quality control. The results were, in fact, shared with a medical committee. Consequently, the court felt that for purposes of the Medical Studies Act, whether the committee initiated the study or the anesthesia department head initiated the study for the committee's benefit was not a major distinction. The information was the type of information the Medical Studies Act was trying to encourage hospitals to develop. It should have been privileged and the trial court was correct in excluding it from the trial.
As with all "privileged communication" cases, it is not immediately obvious that justice was served in this particular case. If the evidence was accurate, the hospital had been negligent in providing anesthesia on a timely basis. The baby's last known heart beat was at 11:37. If the anesthesia team had been notified at 11:30, perhaps it could have arrived in time so that the baby would not have been deprived of oxygen. It seems unjust that the court should know there was negligence but stand by while the case is lost. On the other hand, if we allow this information to be introduced at trial will we discourage future heads of anesthesia departments and future medical committees from conducting thorough investigations? As a society, we do not want the hospital and the head of the anesthesia department to feel that they are better off not knowing what went wrong in order to avoid having to admit to wrongdoing or having to testify against a colleague. The Illinois legislature has determined that it is better for a peer review committee to do its work even if the information it produces cannot be used at trial.
Formulas do not work: Professionals have to think
In performing research for this month's column, I came across the case of St. Paul Medical Center v Dennis Cecil et al, 842, S.W.2d 808, 1992, Tex. App. Lexis 3191. The law requires professionals to use judgment and their education in making decisions in the best interest of their patients. Some practitioners, especially in the healthcare field, continue to look for simple formulas or protocols which allow them to avoid having to think. One such inappropriate formula is the notion that when a surgeon works with an anesthesiologist, the surgeon does not have to worry about what goes on at the head of the table. The legal principles which govern the liability of a surgeon for the actions of a nurse anesthetist are the same principles which govern the liability of a surgeon for the actions of an anesthesiologist. Surgeons who think that they avoid liability when they work with anesthesiologists are uninformed.
In St. Paul Medical Center v Dennis Cecil et al, a hospital resident determined at 3:20 AM that there was fetal distress and that an emergency cesarean section was required. When the obstetrician arrived at the hospital, he decided to wait for an anesthesiologist rather than proceed with the CRNA who was on call. The baby consequently was not delivered until 4:57 AM. The baby was born with brain damage caused by prolonged hypoxia. The case only discusses issues concerning the negligence of the hospital because the obstetrician who decided to use an anesthesiologist rather than a Certified Registered Nurse Anesthetist settled his negligence suit with the plaintiff before trial.
Of course it comes as no surprise that a surgeon's decision to wait for an anesthesiologist can be negligence. Nurse anesthetists give quality care and surgeons have an obligation to select anesthesia care which is in the best interest of their patients. Surgeons have to evaluate the anesthesia provider, not the provider's diploma.
This article is not intended as legal advice nor is it advice on the law of any state. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
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