PSWP Privilege Prevails According to a Federal District Court in Kentucky

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In early May 2014, the United States District Court for the Western District of Kentucky issued an order denying the production of Patient Safety Work Product (PSWP) privileged documents in a wrongful termination lawsuit.  This unprecedented decision extended the application of the Patient Safety Work Product (PSWP) privilege beyond medical malpractice actions to all federal, state or local civil, criminal or administrative proceedings with narrow exceptions.

In the lawsuit, a former employer resisted production of root cause analysis records and other documents, claiming that the PSWP privilege applied to discovery in the federal discrimination action.  After reviewing the information in-camera, the court agreed and held that the PSWP privilege applied to the withheld documents.  The court also found that the basic information set forth in the former employer’s privilege log satisfied Rule 26(b)(5)(A)(ii) of the Federal Rules of Civil Procedure and the plain language of the PSWP privilege’s statutory elements.
The Quality Improvement Act of 2005 at 42 U.S.C. §§ 299b-21(7) and 229b-22 sets forth the PSWP privilege.  Although the original intent of the privilege was to limit malpractice exposure, this recent order provides clarity as to the PSWP privilege’s widespread application when its elements are proved.  The decision also gives health care providers an additional incentive to report patient safety information to certified patient safety organizations in order to secure the use of the prevailing PSWP privilege.

If you would like more information, please contact Susan E. Ziel.  Thank you.

1 Narrow exceptions to the PSWP privilege are set forth in 42 U.S.C.§ 299-b22(c).