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Appellate Court Protects Patient Safety Work Product

Publish Date: June 18, 2012

The Illinois Second District Appellate Court has upheld a lower court’s decision that patient safety work product is privileged under the Patient Safety and Quality Improvement Act (PSQIA) of 1995 which was passed by Congress to encourage voluntary provider-driven initiatives to improve the quality of health care services through the development of patient safety organizations (PSOs).

In this case, The Illinois Department of Financial and Professional Regulation filed a lawsuit against Walgreens after Walgreens refused to turn over incident reports of medication error regarding three of its pharmacists that had been subpoenaed by the Department. Walgreens contended that it had already submitted all reports of medication error electronically to a federally certified PSO as part of its patient safety evaluation system, and the reports were therefore considered patient safety work product which is protected from discovery under the PSQIA.

The lower court found that the incident reports of medication error were indeed privileged patient safety work product and not subject to discovery, and the Department appealed. The appellate court upheld the lower court’s decision, confirming that the incident reports were exactly the type of information Congress intended to protect in passing the PSQIA, which encourages a culture of safety and provides broad confidentiality and legal protections for information collected by a provider for the purpose of improving quality of care and patient safety. The decision is the first appellate decision on this topic and should encourage participation in PSOs by providers who were previously concerned that reports of medical errors could be used against them to establish liability.

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