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Nurse’s Incident Report Not Barred from Discovery in Med-Mal Case

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The Allegheny County Court of Common Pleas has held that an incident report completed by a charge nurse is not barred from discovery under the MCARE Act. The court's decision is among other recent trial court decisions regarding the growing body of case law that has yet to be addressed by the appellate courts.

In Lesterick v. Singh, No. GD-13-016483, 2015 WL 3615167 (Pa. Ct. Com. Pl. May 4, 2015), the report at issue described an event where the only on-call obstetrician in the hospital left the hospital just prior to an emergency cesarean section being called. According to plaintiffs, the only on-call physician left the hospital to eat dinner at a restaurant causing an emergency cesarean section to be delayed and ultimately performed by a resident with no supervision. The charge nurse working at the time testified at her deposition that she was in the operating room with the obstetrical team ready to perform the cesarean section but left to look for the on-call physician. She saw him walking towards the operating room in street clothes, which were not allowed in the operating room. She further testified that she had never heard of the only on-call obstetrician leaving the hospital or a resident performing an emergency cesarean section.

That evening, the charge nurse prepared an incident report describing the events surrounding the delivery. Plaintiffs sought discovery of the report and defendants vigorously contested its production. Defendants argued that the incident report was protected from discovery under Section 308(a) of the MCARE Act. However, plaintiffs alleged that the report was not prepared under Section 308(a), which applies only to health care workers who reasonably believe that a serious event or incident has occurred, and who prepare a report according to the health care facility's patient safety plan.

In making its decision, the trial court pointed to the charge nurse's deposition testimony and noted that she did not testify that she prepared the report because she believed a serious incident occurred. The court noted that the hospital did not appear to have a patient safety plan, and therefore, the report could not have been prepared in accordance with a patient safety plan. Further, Section 308(b) of the MCARE Act requires that patients be notified after a serious incident occurs, and the plaintiffs were never notified of any of the events that were included in the incident report. Lastly, the court found that in order for the report to be protected under Section 311 of the MCARE Act, it would have to have been considered by the patient safety committee, and there was no evidence of that in the case.

The facts surrounding the incident report also appeared to be an integral part of the court's decision. The court found that the behavior as described in the report was so extreme that it was "unlikely that the sole motivation of the charge nurse for creating the report would have been compliance with the requirements of the MCARE Act." Without citing any appellate case law, the judge held that the report was discoverable because it was not completed as a result of a patient safety committee meeting or strictly for compliance with the MCARE Act. While it has yet to be determined how the appellate courts will handle the issue of the discoverability of incident reports in the future, the decision in this case is in line with the recent trend of other Pennsylvania trial courts.

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