For Patients’ Sake! Can We Get Some Clarity? Defending the Privilege and Confidentiality of Patient Safety Work Product

In 2000, the Institute of Medicine published To Err is Human: Building a Safe Health System, a report revealing the shocking rate of medical errors plaguing the United States healthcare system. Faced with the horrifying consequences of these medical mishaps, Congress sprang into action. It enacted the Patient Safety and Quality Improvement Act of 2005 (PSQIA), which authorized the creation of Patient Safety Organizations (PSOs). Intended to increase transparency and communication amongst healthcare providers, PSOs collect provider medical error data—termed Patient Safety Work Product (PSWP)—and suggest areas of improvement. The Act grants privilege and confidentiality protections to any information that fulfills the statutory definition of PSWP. Patient-plaintiffs in state court medical malpractice actions often attempt to circumvent these protections—and compel discovery of provider-defendant information—using provisions of the Act relating to state-mandated reporting laws. These patient-plaintiff arguments have varying efficacy in state courts and have resulted in inconsistent interpretations of the Act across the nation. This Comment argues that Congress should amend the language of the “dual-purpose” exception, a provision that has catalyzed troubling judicial inconsistency. Such an amendment must be carefully constructed to define the relationship between PSWP and information mandated by state reporting laws. The proposed amendment must also retain the Act’s existing preemptive language. This crucial change will deter state courtconflict and ensure the overarching goal of the PSQIA—improved patient care—is achieved.