Changes in Washington Practice Report (#10) / Balancing the medical review privilege and the Affordable Care Act

January 29, 2014

Washington State LawThis is installment #10 in a continuing series of Changes in Washington Practice Reports.

The 2013 pocket parts to Evidence Law and Practice by Tegland  (volumes 5 to 5D of Washington Practice)  include new case law regarding the “privilege for medical review boards” at section 501.96.

Searches for such materials can take place by direct reference to volumes 5 to 5D, or by reference to Methods of Practice and the related summaries of Tegland’s comprehensive discussion of Evidence Rule 501 and privileges.

Tegland’s discussion refers to a medical malpractice action, cited as Fellows v. Moynihan, 175 Wash.2d 641, 285 P.3d 864 (2012).

During discovery, the plaintiff sought the “credentialing, privileging, and personnel records of the physician”…,  primarily seeking information regarding disciplinary actions.

As noted by Tegland, “The trial court denied…access to these records, ruling that the records were protected against disclosure….”

“The Supreme Court disagreed and reversed….”

The Supreme Court noted that “the quality improvement privilege must be narrowly construed in favor of discovery….” and that “protected documents (must) be created specifically for, and collected and maintained by, a quality improvement committee….”

Records cannot be routed through a quality improvement committee in order to prevent discovery.

The Court also noted that “The burden of…nondisclosure rests with the party resisting disclosure….”

This ruling is timely in light of the present implementation of the Affordable Care Act (ACA) in Washington.

Under the ACA, incentives are provided to encourage providers and insurance companies to seek new strategies for managing care and cost control.

At the same time, new appeal procedures are specifically provided for patients (ACA statutes section 2719).

As system-level efforts are being made to pressure providers to shift from fee-for-service care to “value” care, it is important to maintain a check-and-balance so that the records of care are largely discoverable.

In this way, providers will continue to adapt to the new incentives, while also being aware that their actions largely remain accountable to outside review.

Attorneys can search for needed resource materials by reviewing the individual volumes of Washington Practice, or by starting with the summaries and search strategies available in Methods of Practice.

For additional information regarding the extracts, summaries and other legal resource materials to be found in Methods of Practice, refer to volumes 1 to 1C of Washington Practice, by Cheryl Mitchell and Ferd Mitchell of Mitchell Law Office.