Medical errors occur at staggering rates at medical institutions across the country. The exact statistics on the extent of the problem, however, is hidden from public scrutiny by virtue of laws that protect medical institutions from disclosing the contents of incident reports and peer review proceedings. When a patient inexplicably falls out of bed or dies on the operating room table, for example, an incident report is typically prepared. Access to that report by the patient and his lawyer, however, is typically denied either on the basis that the report was prepared in anticipation of litigation and is privileged, or that the report was prepared in connection with actual or anticipated peer review proceedings against the medical providers whose omissions resulted in the accident and are thus also privileged.
The idea behind the protections against disclosure of incident reports and minutes from peer review proceedings is to afford medical institutions the unfettered incentive to keep records and conduct proceedings that will improve the quality of care without fear of claims and lawsuits. The end result, however, is far from ideal, and gives rise to significant under-reporting to the public and to the affected patients of accidents and adverse events of malpractice. Something is wrong with this "cone of silence". One might rightfully ask: "How will we ever know whether the stated objectives of confidentiality and privilege are ever being met if we can't gain access, at least periodically, to the records that show what occurred and how the institutions reacted?"
Similar to the goal of improving medical care, the law of torts has a goal of encouraging the pace of medicine to establish "standards of care" which doctors are expected to adhere to. The law, like technology and education, has encouraged the development and progress of heightened standards of care The law also has a deterrent effect built into it, whereby doctors and institutions, knowing they will be held accountable for their mistakes, will act more carefully in the future if they are exposed to potential claims and lawsuits.
Plaintiffs and plaintiffs' lawyers are faced with significant burdens of proof in medical malpractice actions. They must clear administrative agency review of their claims before suit is filed, which usually means they must demonstrate through expert affidavit the legitimacy of their claims shortly after they are filed without the benefit of full discovery and document production. Because the extent of the information available to the plaintiff is limited by time, privilege, or outright destruction and loss of medical records, many legitimate cases end at this point . Access to arguably the most reliable information on the event at issue--the contemporaneously prepared incident report--is denied, and the account of the medical provider during deposition is the only rendition available. And although witnesses under oath are expected to tell the truth, their accounts are only as good as the questions asked, and sometimes, not surprisingly, witnesses lie.
State legislatures should rethink whether the goals of confidentiality of incident reports and peer review proceedings are meeting the objectives they were created for, and should, at minimum conduct periodic audits with public access to the results, even if the identities of those involved are kept confidential. Full disclosure allows full debate. Right now, the debate is one-sided and driven by inaccurate data and fallacious accounts that malpractice claims are driving this country's health care industry into the ground. The goal of patient safety is everyone's goal. We should know how safe our medical care really is before debating whether our system of legal recourse for medical mistakes is broken.
