Law experts: informal conversations between physicians

[Idiopathic]

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So this came up in grand rounds this morning. If I am discussing a complication with a group in a formal Peer Review session, that is protected from Discovery, at least as far as I know.

Hypothetically, what if Im discussing it with my partners in our office in a "What did I do wrong" or "What should I do now" context? Can they be deposed to testify to the content of the discussion?

 

[wine thief]

this is my understanding:

1. discussions in a peer reviewed quality assurance setting are protected (m&m).

2. discussions with a patient safety officer are protected

3. discussions with risk management are discoverable unless for example, you have a written communication -maybe you lay out the events as you recall them- if you write "prepared for counsel," date and sign it, this is protected, even if you give it to risk management. otherwise any written notes you make are discoverable.

4. also if you meet with someone not in patient safety- say, your chairman or partners and there is hospital counsel present, this is protected.

5. technically yes, if you spoke to your partners they could be deposed. but only if you told the plaintiff's lawyer that you had those conversations.

6. some will instruct you not to use hospital communications, even in-house phones, to discuss anything about the case.

 

[deleted126335]

Remember, The hospital's risk manager and attorney don't work for you. They work for the hospital. Their job is not to protect you. They are there to protect the hospital. Even if you are a hospital employee. Speak to hospital risk management only after talking to your counsel or insurance company. Some years ago during a deposition the hospital's attorney tried to throw my partner under the tracks for a decision that the circulating RN made, implying that she was acting under his direction.

The only person who works for you is your lawyer, and then only if you or your group are paying for him (even though their code of professional conduct says who is paying doesn't matter, it is reality)

 

[IlDestriero]

While the content of that conversation may be discoverable, I would doubt that you would volunteer that we talked, and I certainly wouldn't recall any specific conversation about your complication.👍
Important tip about risk management/hospital provided council, they may work to decrease everyone's liability, but they're not specifically representing your interests. Fine for a broken tooth or EKG burn, you want your own representation for a serious complication. (and so does your insurance company)

 

[Idiopathic]

kind of what i reasoned. it would take someone coming forward to say that the conversation took place right? can they just blanket depose everyone in the practice and ask if they were told anything about a case? that seems ridiculous, but you never know.

 

[Laryngophed]

So this came up in grand rounds this morning. If I am discussing a complication with a group in a formal Peer Review session, that is protected from Discovery, at least as far as I know.

Hypothetically, what if Im discussing it with my partners in our office in a "What did I do wrong" or "What should I do now" context? Can they be deposed to testify to the content of the discussion?

I thought this was interesting and I asked my SO about it (who is a newly minted lawyer) and was informed that if you are approaching your partners informally, the conversation is likely subject to discovery. If the conversation is part of a formal internal review, it is protected.

 

[Mman]

When they come asking for my story, I have no recollection of that conversation.

And honestly I hear so many patient care stories every day of the week that I doubt I can recall much of anything from more than 1-2 days ago in terms of details of a case. I mean I guess if something terrible happened and they told me about it, I might remember a little, but honestly I just wouldn't remember if someone asked me about it 6-12 months later.

 

[Obnoxious Dad]

I will never be a physician but I am a member of the bar. The rules of evidence and privileged conversations vary from state to state. Although I am sure that the advice above is offered with the best of intentions it may not be accurate in your jurisdiction.

 

[Laryngophed]

I will never be a physician but I am a member of the bar. The rules of evidence and privileged conversations vary from state to state. Although I am sure that the advice above is offered with the best of intentions it may not be accurate in your jurisdiction.

I should have added that part, I was told that but was too lazy to type it. I didn't think he was asking for advice so much as it was merely an exercise in mental... gymnastics?

 

[wine thief]

I will never be a physician but I am a member of the bar. The rules of evidence and privileged conversations vary from state to state. Although I am sure that the advice above is offered with the best of intentions it may not be accurate in your jurisdiction.

you mean we shouldn't construe comments in an anonymous internet forum as sound legal advice? thanks, very insightful.

 

[Impromptu]

Any conversation you have about the case or patient can be used in court. Even the 'protected' M&M has restrictions.

Our lawyers advised us to always preface our conversations with "hypothetically..." or "What would you have done in this hypothetical situation with this hypothetical patient?..." She said she regretted that we had to talk about medicine that way, but it was the safest course of action.

 

[Dirt]

Just a little rude awakening from Delaware.

http://governor.delaware.gov/news/2010/1006june/20100630-legislation.shtml

Here is the most interesting little tidbit

• Gives the Board expanded authority to obtain information from peer review panels. Previously, the Board was only allowed to get peer review documents when the panel disciplined a physician. SB 296 opens that up – to give the Board the ability to investigate peer review panels without regard for whether the panel disciplined the doctor or not.

M&M is now discoverable...

 

[Sergio99]

Hello,

Just as others said above, I just hope you don't remember any informal conversations with anybody and none of your coworkers remember any informal conversations with you.

Greetings

 

[Idiopathic]

Just a little rude awakening from Delaware.

http://governor.delaware.gov/news/2010/1006june/20100630-legislation.shtml

Here is the most interesting little tidbit



M&M is now discoverable...

not sure if this applies to med mal however. and couldnt i offer up information from peer review as a matter of course, just not be COMPELLED to do so?

 

[jwk]

Just a little rude awakening from Delaware.

http://governor.delaware.gov/news/2010/1006june/20100630-legislation.shtml

Here is the most interesting little tidbit



M&M is now discoverable...

Protected peer review is covered under federal law, so I'm not sure states can lessen the protection afforded under federal statutes.

 

[wine thief]

i guess i don't quite understand what this means:

"Gives the Board expanded authority to obtain information from peer review panels. Previously, the Board was only allowed to get peer review documents when the panel disciplined a physician. SB 296 opens that up – to give the Board the ability to investigate peer review panels without regard for whether the panel disciplined the doctor or not."

#1- how is a peer review panel defined?
#2- if the BOM can obtain info from peer-review panels, does this mean they are necessarily available to plaintiff's attorneys?

thanks for the link, dirt.

 

[Dirt]

I wish I could explain this a bit more. Unfortunately I am just a 3rd year on an away rotation in DE and have only been overhearing this conversation among the docs here. The hospital I am at recently held a meeting for all medical staff discussing the fallout from this with hospital brass, risk management, and the hospital attorneys, which I did not attend.

Basically the heresay I am getting is that any official peer review (unsure of how this is defined), ie M&M, is discoverable for both the purposes of the state medical board and lawyers as well regardless of whether there was any disciplinary action taken. There is big time concern here that these laws are going to severely affect if not eliminate peer review for educational purposes.

Maybe someone actually from DE can comment more on the matter.

 

[wine thief]

for some reason the public/plaintiff attorneys seem to think m&m is a mystical event where all of our dirty secrets of gross negligence are exposed. it's really a very dry, emotionless conference.

as a resident we had a standard powerpoint format. you were forced to choose a "type" of error (ie knowledge, systems, etc) and recommendations. most of the time it was just poor protoplasm or acute lead poisoning (gsw) rather than a true error. i would hate to have an acknowledgment of an action that's not even a true error blown up on some trial lawyer's "Exhibit A."

 

[Idiopathic]

i guess ultimately the peer review privilege only applies to documents, anyway, and any individual can be called to testify or give deposition - its up to them to "remember" whatever they choose. informal conversations with colleagues are infinitely more damning than formal peer review documents, anyway, UNLESS they are evaluations of competency, etc. that departments have prepared for staff/residents, which seems to be what is requested more than anything in discovery.

i suppose its another reason to not make enemies.