I remember as though it were yesterday my first M&M (morbidity and mortality) conference. It was convened only a week or so into my very first clinical rotation, in general surgery. Almost the entire department was there, from the white-haired professors in their pristine starched white coats down to us lowly students with our backpacks and already-soiled polyester jackets. A resident presented the first case: a previously healthy 42 year-old patient who had died after what was expected to be a routine cholecystectomy–an open procedure, of course; this was 1975. Postoperatively, she had developed a suppurative cholecystitis complicated by sepsis with Escherischia coli. This led to progressive, multi-system organ failure and a steady downhill course. Although the resident seemed to speak in calm, dispassionate tones, he stunned me, and probably the other rookies as well, by announcing to the throng in closing that he attributed the death to his having injured the common bile duct intraoperatively. After he finished speaking, the pathologist who had done the post described the findings, consistent with the account we had just heard. With that, the attending on the case, a highly respected and feared savant not only at the hospital but in national surgical circles generally, contradicted the resident by blaming the death on his own failure to supervise the resident more closely. Although this oration, too, was delivered in a rather sterile scientific vocabulary, it was clear that the attending meant every word and, in front of much of his professional world, took personal responsibility for the patient’s death. Finally, the Chief of Surgery summarized, offering admonitions, paraphrasing pertinent literature, and soliciting input from all attending on how tragic outcomes such as this could be avoided in the future.
As the Irish would say, I was gobsmacked. The malpractice problem was already well-entrenched by then. But thoughts of lawyers and liability were not in evidence. The focus was exclusively on how things had gone wrong in treating this individual. The combination of seeming self-abasement, rectitude, and profound concern for the patient and her family provided for me a quasi-religious experience. The goal of the M&M conference was not to castigate. The goal was to place a problem under a microscope, to bring to bear all the brains and experience in the room, to understand the outcome as fully as possible, to try to prevent recurrences. I thought to myself: who else does this?
For all its imperfections, the law recognizes that this kind of self-scrutiny should be encouraged: it saves lives. Many states have enacted legislation to foster activities such as this, by protecting from discovery documents and records generated in or furnished to groups of healthcare professionals who gather to examine and learn from maloccurrences. Virginia is an example. See, Va. Code §§ 8.01-581.16, http://law.lis.virginia.gov/vacode/title8.01/chapter21.1/section8.01-581.16/, and 8.01-581.17, http://law.lis.virginia.gov/vacode/title8.01/chapter21.1/section8.01-581.17/. Predictably, plaintiffs’ lawyers try to obtain such records; equally so, the defense resists.
One such struggle was resolved favorably just a few weeks ago: Willard v. State of Iowa, No. 16–1009 (Iowa 2017), http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20170407/16-1009.pdf. At issue was a decision by the trial court to permit plaintiff, allegedly injured during a CT exam, to overrule defense objections to producing the hospital’s Patient Safety Net (“PSN”) materials. On interlocutory appeal to the Iowa Supreme Court, the lower court’s decision was reversed. The Iowa high court observed that PSNs are used “for a number of purposes, including but not limited to morbidity and mortality studies, a source for [hospital] staff to review events, a source to determine trends, information to identify topics for research or conference presentations, and literary reviews.” These purposes, said the court, were among the ones the legislature had in mind when it enacted statutes protecting those providing information intended to reduce morbidity or mortality. The court quoted a statute providing that ‘information, interviews, reports, statements, memoranda, or other data furnished in accordance with this division and any findings or conclusions resulting from such studies shall not be used or offered or received in evidence in any legal proceedings of any kind or character…” Iowa Code §§ 135.42 (2015), https://coolice.legis.iowa.gov/Cool-ICE/default.asp?category=billinfo&service=IowaCode&ga=83&input=135.42.
The court also invoked public policy:
The protection afforded by the confidentiality privilege allows hospital staff to feel comfortable reporting any and all safety concerns because those reports will remain confidential and not be subject to discovery in a legal proceeding. This confidentiality allows hospitals to utilize PSNs to reduce adverse patient safety events based on preventable medical errors. The protection is intended to apply to documents or communications that constitute “patient safety work product.” We find that Iowa Code section 135.42 extends to prevent discovery of PSNs and related documents.
Willard, Slip op. at 16.
Comment
Whether anyone created a record of my fist M&M conference so many years in the past is more than I know. At the time, I did not think to ask; I was far too immersed in the medicine, and even more, in the drama. But it is hard to imagine that the professionals, young and old, who engaged in this individual and collective examination of conscience would have displayed the same frankness had they been concerned that some day their words would be used against them. Iowa’s law is wise, and its Supreme Court’s construction well-crafted to accomplish the legislature’s goals. Courts in other jursidictions construing analogous statutes should do likewise.