/publications/issue/2011/July2011/May-a-Plaintiff-Get-Access-to-Medication-Error-Reports

May a Plaintiff Get Access to Medication Error Reports?

Author: Joseph L. Flink III, BSPharm, JD

In a wrongful death suit, the son of a woman who died in an assisted living facility seeks evidence of negligence and malpractice. 


Issue of The Case

When an institution or facility creates a system to compile information about medication-related mishaps, are those medication error reports subject to release for use as part of a liability lawsuit against the establishment?

Facts of The Case

A lawsuit was filed against an assisted living facility by the surviving son of a woman who had been a resident there. The son was pursuing the legal action as executor of his mother’s estate. The allegations in the legal filing included negligence, malpractice, and wrongful death, and punitive as well as compensatory damages were being sought.

To support those claims, the plaintiff/ son filed a motion with the trial court handling the action requesting that the defendant corporation that operated the facility be compelled to produce “any and all Medication Error Reports for errors and/or suspected errors made at (the facility) from March 10, 2000 to July 5, 2007 with confidential information redacted.” By the phrase medication error reports, the plaintiff was referring to “documents used to record errors made in dispensing medications at the facility where [his mother] lived.” This was part of the pretrial activity known as discovery, whereby each side has the opportunity to collect information to assess the strength of the opposition’s case.

The defendants advised that no such reports existed related to the deceased woman. The plaintiff then expanded his request to encompass reports related to medication errors involving residents who were not parties to the lawsuit but who were residents of the facility during the specified time period. The surviving son argued that these documents would lead to “admissible evidence showing defendant’s liability, supporting plaintiff’s claim for punitive damages, establishing prior occurrences, and assisting plaintiff in assessing the credibility of witnesses.” 

The issue before the court when ruling on this request from the son was how the information appearing in such medication error reports should be viewed under the law. The defendant firm that operated the assisted living facility countered that these documents contained information provided by a patient to a nurse for the purposes of medical diagnosis and treatment. Under the applicable law of that state, such information would be considered “privileged” (protected from release).

The plaintiff replied that the medication error reports were essentially reports of injuries. Thus, these injury or incident reports did not fall under the physician-patient privilege exception.

The CourT’s Ruling

The court ruled that the documents in question did not fall under the state’s physician-patient privilege statute and, consequently, the corporation operating the facility was ordered to release them.

The Court’s Reasoning

The court began its opinion by emphasizing that there is relatively great latitude for court-ordered discovery activities in a civil lawsuit. In this case, the medication error reports were clearly defined as falling outside the patient’s medical record. The information in these documents was not used to treat a patient. So the judge concluded that a more appropriate view of the medical error report system was that it was put in place to record accidents.

The court emphasized that, “The Medication Error Reports are not deemed ‘confidential medical records’ simply because they may contain patient information that is typically kept confidential.”

Turning to the issue of how the reports of incidents involving residents of the facility other than the deceased woman could possibly be relevant, the judge concluded that such information could be helpful in supporting the claim for punitive damages by establishing prior occurrences, establishing liability on the part of the staff at the facility, and assessing the credibility of witnesses. The judge ruled that certainly the information could prove useful for the first purpose—supporting punitive damages—so there was no need to address the other 2 arguments. The first one alone was sufficient to support an order that the documents be released.

The bottom line for the court appeared to be presented in the perspective that “evidence has established that the Medication Error reports at issue are a means for defendants to internally document medication errors and prevent or reduce the reoccurrence of such errors. The record shows that the reports at issue may contain confidential as well as nonconfidential information, none of which is a communication between a patient and a physician.” PT


Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.