A 2017 Johns Hopkins study claims more than 250,000 people in the U.S. die every year from medical errors. Other reports claim the numbers are even higher, perhaps as much as 400,000. Either number would make medical errors the third-highest cause of death in the U.S., behind cancer and cardiovascular disease. Of course, these numbers relate only to deaths. Many thousands more patients suffer catastrophic or lifetime injuries because of such negligence. The truth is, hospitals can hide damaging information through “quality improvement” statutes.
Most people would applaud efforts by hospitals and other medical facilities to study and learn from their mistakes and make improvements to prevent deaths and injuries in the future. Unfortunately, Washington law recognizes much of these meritorious actions as something to be protected from public or legal scrutiny.
Washington law, in RCW 43.70.510, provides that records and reports produced for a formal Quality Improvement process are privileged and may not be obtained through discovery by attorneys representing an injured person or the family of a decedent. Sometimes this prevents an attorney from finding crucial information or documents regarding an instance of medical malpractice. Almost every state has an equivalent law.
This privilege is fiercely defended by medical institutions and their attorneys, and there have been numerous challenges by plaintiffs’ attorneys to specific information or documents that are contended to fall within the “QI privilege.” As a result, some cases have slightly narrowed the scope of the privilege, but the protections remain in place.
The rationale for protecting this information from legal scrutiny is that it encourages medical facilities to investigate and institute changes on its own. The theory continues that if the facility knew that its investigation, and its results, would be discoverable by plaintiffs’ attorneys and potentially used in litigation, it would discourage it from doing this. The validity of this rationale has been questioned, with critics contending that a medical facility should do its best to improve patient safety regardless of legal consequence.
Critics have pointed out that other “industries” do not have this kind of privilege from disclosure. If an airplane inexplicably falls from the sky, is the manufacturer or airline trusted to do its own investigation and fend off efforts by the victims’ attorney to obtain information about what happened and why? If vehicle airbags fail to work, and drivers die as a result, do we trust the manufacturers to properly investigate and improve on its product without scrutiny by the victims or their attorneys? This same argument would apply to all industries that are covered by the federal Occupational Safety and Health Administration (OSHA) in the Department of Labor, and to all firms that have state workers’ compensation coverage. It isn’t clear to critics why the medical profession needs special protection from disclosure via “quality improvement” statutes in order for it to correct problems that threaten patient safety.
