Wait, What?! Incident Reports can be Discoverable?

In a recent Michigan case,[1] a hospital made a single misstep in their approach to incident reports—resulting in sanctions against the institution and its counsel.

It all started with a lack of understanding. Some, like this Michigan hospital, believe all incident reports are part of the “peer review” process and not discoverable in litigation. The Michigan court disagreed and found the report was discoverable as a document “prepared in the ordinary course of business.”

In the case, a patient was burned by a surgical instrument, and an incident report was created. The report contained an opinion about how the injury likely occurred, which was contrary to the hospital’s defense in the litigation that it did not know how the burn occurred. The incident report was then discovered, despite a claim of privilege. Thereafter, sanctions were ordered against the hospital and its counsel for raising defenses “not well grounded in fact.”

This case confirms the lesson that all staff members need to be trained on how to fill out incident reports. These reports need to contain only the facts, nothing inflammatory, and should not contain guesses or speculation as to causation issues when not needed. Sensitive information on opinions and internal sanctions should not be part of the factual incident report. It should be assumed that the incident report will be discovered and may be read to the jury!

Bottom Line: Do what’s right but keep yourself out of trouble.  Incident reports are for facts – not inflammatory or accusatory opinions, conclusions or assumptions.

If you have questions about this or any other matter regarding investigation of a claim or event, please contact us.

Harrison v. Munson Healthcare, Inc., 851 N.W.2d 549, 572 (Mich. Ct. App. 2014), vacated, 869 N.W.2d 613 (Mich. 2015), overruled on other grounds Krusac v. Covenant Med. Ctr., Inc., 865 N.W.2d 908 (Mich. 2015).

 
Larry Waranch

Larry Waranch

Larry Waranch is an AV rated trial lawyer and a founding partner of Waranch & Brown. His practice focuses primarily on medical malpractice defense, medical licensure matters, administrative defense and general liability.
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