Incident reports involving patient care can be protected by Ohio’s peer review privilege. They can also be protected under the Patient Safety Quality Improvement Act (PSQIA), the federal statute creating patient safety organizations (PSOs). However, not all incident reports are covered by Ohio’s peer review privilege. And to further complicate matters, you may lose protection under both Ohio and federal law if you do not process incident reports appropriately.
So, although there are a number of issues to consider, here are three of the most significant ones:
Incident reports are not peer review protected if (a) they involve something other than patient care (e.g., a visitor injury) and (b) they are not generated for review by a peer review committee.
If incident reports are also reviewed by your risk management department, you run a substantial risk that they will not be protected unless they are subject to Ohio’s attorney-client privilege and related work product doctrine. Peer review protection will be available only if the risk management department is also a designated agent of a peer review committee and the information is only used for peer review purposes (e.g., reviewing the report to determine insurance coverage is not a peer review purpose).
Courts are taking the position that PSQIA only protects information that is compiled for the sole purpose of submitting to a PSO. This means you should not submit the incident report to your patient safety evaluation system (since you may also be using the report for peer review purposes). Instead, the report should go into the peer review process and specific information should be pulled from the report to generate a new form for PSO purposes.