What Can a Hospital Refuse To Disclose Under The Guise Of Quality Improvement Review?

By: Ron Perey & Carla Tachau Lawrence

August 2001

Two years ago, on August 25, 1999, Nolan Hopkins was born prematurely at Stevens Hospital. Several hours after birth, Nolan received an overdose of Aminophylline (theophylline), mixed and prepared in Stevens Hospital’s pharmacy. The overdose caused a cerebral hemorrhage that necessitated two ventriculostomy drains and the long-term placement of a shunt to relieve fluid accumulation in Nolan’s brain. He is disabled today and will probably permanently remain so.

The hospital’s own Pharmacy Director, Gordon Oakes, R.Ph., and its former Assistant Director, Allen Rivers, R.Ph., both testified in depositions that the overdose most probably resulted from an error in preparing Nolan’s aminophylline loading dose. Hopkins’ experts, including Lucille Ann Papile, M.D., world-famous neonatology expert who has extensively researched head bleeds in infants, and Dr. Frank Vincenzi, Professor of Pharmacology of the University of Washington, confirm that this is the most likely explanation. Stevens Hospital has offered no expert opinion and no other reason for the overdose. Yet, since the beginning of discovery, Stevens Hospital avoided and resisted producing information—including statements given by pharmacy staff to the Pharmacy Director the day after the overdose—to the point of incurring sanctions twice. What did Stevens Hospital rely on to resist discovery? Washington’s quality improvement statute, RCW 70.41.200(3).

The quality improvement statute, enacted in 1986, provides:

(3) Information and documents, including complaints and incident reports, created specifically for, and collected, and maintained by a quality improvement committee are not subject to discovery or introduction into evidence in any civil action, and no person who was in attendance at a meeting of such committee or who participated in the creation, collection, or maintenance of information or documents specifically for the committee shall be permitted or required to testify in any civil action as to the content of such proceedings or the documents and information prepared specifically for the committee. This subsection does not preclude: (a) in any civil action, the discovery or the identity of persons involved in the medical care that is the basis of the civil action whose involvement was independent of any quality improvement activity; (b) in any civil action, the testimony of any person concerning the facts which form the basis for the institution of such proceedings of which the person had personal knowledge acquired independently of such proceedings; . . . .

RCW 70.41.200 (emphasis added). The year the Legislature enacted RCW 70.41.200 was the same year as the legislative package collectively called “tort reform”. Laws of 1986, ch. 300, § 4. The overall stated purpose of the law was to reduce medical malpractice by requiring hospitals to “establish coordinated medical malpractice prevention programs and provide greater scrutiny of physicians prior to granting or renewing hospital privileges.” Laws of 1986, ch. 300, § 1 (Substitute House Bill 1950). The first subsection of RCW 70.41.200 stated:

Every hospital shall maintain a coordinated program for the identification and prevention of medical malpractice. The program shall include at least the following: (a) The establishment of a quality assurance committee with the responsibility to review the services rendered in the hospital in order to improve the quality of medical care of patients and to prevent medical malpractice.

For purposes of this motion, it is worth noting that this legislation did not address staff statements about an event or review of hospital pharmacy practices. Moreover, the negligence in this case is “pharmacy negligence” not involving any medical personnel (doctors or nurses).

The Legislative Digest of SHB 1950 described the discovery immunity for quality improvement committee documents in this bill as follows: “Information compiled by hospital review committees conducting quality assurance reviews is not subject to discovery or introduction into evidence, with exceptions.” Very minimal debate appears in the Senate and House Journals,[1] and there is no discussion of the immunity from discovery.

Subsection (3) set forth the immunity, protecting “[i]nformation and documents, including complaints and incident reports, created, collected, and maintained about health care providers arising out of the matters that are subject to evaluation by a review committee conducting quality assurance reviews”. SHB 1950 (emphasis added). This formulation provided for such broad immunity from discovery that the Legislature promptly amended it in the 1987 session by eliminating the vague phrase, “subject to evaluation”, and substituting the more specific phrase referring to matters that are “under review or have been evaluated by a review committee conducting quality assurance reviews”.

Even this restriction was not narrow enough to strike a comfortable balance between the need for discovery and the policy of promoting candid assessment of patient care. In 1993, the Legislature passed Engrossed Second Substitute Senate Bill 5304, as part of health care reform. This bill contains over 400 sections, including amendments to RCW 70.41.200(3). The overall legislative intent of E2SSB 5304 was “that state governmental policy stabilize health services costs, assure access to essential services for all residents, actively address the health care needs of persons of color, improve the public’s health, and reduce unwarranted health services costs to preserve the viability of nonhealth care businesses.” Laws of 1993, ch. 492, § 1. Significantly, the 1993 amendment changed and clarified the lengthy phrase, “created, collected, and maintained about health care providers arising out of the matters that are under review or have been evaluated by a review committee conducting quality assurance reviews”. That phrase became: “created specifically for, and collected, and maintained by a quality improvement committee”. Laws of 1993, ch. 492, § 415.

The 1993 Legislative Digest for E2SSB 5304 says nothing about these particular changes to RCW 70.41.200(3). This is not surprising, because the amendments speak for themselves and need no explanation. The Legislature understandably felt it necessary to unclutter and further narrow the scope of the statute’s immunity for incident reports “created specifically for” a quality improvement committee. Otherwise, hospitals might easily abuse the quality improvement immunity to hide contemporaneous impressions of an event, placed in an incident report or complaint that ultimately found its way into the quality improvement process. “Quality assurance” became “quality improvement” to more accurately reflect the committee’s and the legislation’s purpose—not merely to assure the quality of the hospital’s health care services at some level set in the past, but to improve the quality of those services.

Stevens Hospital wanted the court to ignore the words “created specifically for” and read the statute to protect all documents that refer to any incident the committee ever reviews, whether or not the document truly relates to quality improvement and whether or not the document is submitted to or considered by a quality improvement committee. That interpretation would make a mockery out of the statute.

In Coburn v. Seda, 101 Wn.2d 270, 677 P.2d 173 (1984), the Washington Supreme Court narrowly construed the similar statute immunizing records of peer review committee proceedings from discovery:

The discovery protection granted hospital quality review committee records, like work product immunity, prevents the opposing party from taking advantage of a hospital’s careful self-assessment. The opposing party must utilize his or her own experts to evaluate the facts underlying the incident which is the subject of suit and also use them to determine whether the hospital’s care comported with proper quality standards.

. . . Statutes bearing similarities to RCW 4.24.250 prohibit discovery of records on the theory that external access to committee investigations stifles candor and inhibits constructive criticism thought necessary to effective quality review.

Coburn, 101 Wn.2d at 274-75 (emphasis added). But the court was simultaneously aware of a defensive tendency to broadly construe a discovery immunity in order to hide the facts of medical malpractice:

The statute may not be used as a shield to obstruct proper discovery of information generated outside review committee meetings. The statute does not grant an immunity to information otherwise available from original sources. For example, any information from original sources would not be shielded merely by its introduction at a review committee meeting.

Coburn, 101 Wn.2d at 277. Moreover, the House Journal reflected a house representative’s concern that a hospital could “get the evidence out of the civil malpractice action by setting up a committee hearing and filing the reports with them”. A sponsor of the peer review bill replied that the hospital clearly could not hide facts in that manner. In relating this dialogue, the Coburn court noted, “The statute was subsequently amended to prohibit discovery of reports of quality care review committees, in addition to those of peer review committees. The concern expressed in this colloquy nevertheless remains valid.” Coburn, 101 Wn.2d at 277 (emphasis added).

Recognizing a distinction similar to that between documents created for (coming out of) a committee and those submitted to or reviewed by (going into) a committee, the federal district court in Porter v. Snyder interpreted a statute that made confidential “reports and records of executive or review committees of medical care facilities.” Porter v. Snyder, 115 F.R.D. 77, 78 (D. Kan. 1987) (emphasis added.) The defendant hospital argued that this statute protected the hospital’s incident report relating to the plaintiffs’ care and treatment. The court concluded the statute did not protect incident reports that are not reports of the review committee. Instead, the incident reports “are contemporaneous statements of fact relating to incidents which are reviewed by the committee. Thus, incident reports are distinguishable from the committee’s reports and are not included within [the statute’s] protection.” Porter, 115 F.R.D. at 78.

In Nolan Hopkins’ case, a hospital staff person may have attached Gordon Oakes’ statements to an incident report form after he obtained them, but that in no way makes them “created specifically for” a quality improvement committee. The evidence is entirely to the contrary.

Stevens Hospital seems to consider Gordon Oakes’ act of submitting the statements to, or even his telephone conversation with, Risk Manager Lorie Kelley as transforming his own investigation into the official hospital quality improvement process. But as discussed above, this fantasy is simply not what happened. In fact, as Stevens Hospital must know, risk management and quality improvement are two different matters with very different purposes: risk management works to keep the hospital’s litigation costs under control and has nothing to do with improving patient care, while quality improvement, as the name suggests, seeks to improve the quality of health care services. See Kay Laboratories, Inc., v. District Court, 653 P.2d 721 (Colo. 1982) (incident reports, even if ultimately used to improve the quality of hospital care, are not prepared in anticipation of litigation, but rather in the ordinary course of hospital business and are therefore discoverable).

The immunity in RCW 70.41.200(3) is a completely statutory creation. Like all privileges and immunities,[2] it is “in derogation of common law and the general policy favoring discovery,” and therefore courts must strictly construe and limit the statute to its intended purpose. Coburn v. Seda, 101 Wn.2d 270, 276, 677 P.2d 173 (1984); United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (privilege must be narrowly construed as standing “in derogation of the search for truth”). Stevens Hospital has the burden of persuading the court that the immunity should apply. Anderson v. Breda, 103 Wn.2d 901, 905, 700 P.2d 737 (1985). Because the temptation and historical tendency to abuse this immunity is so great, that burden is heavy. Indeed, the hospital must convince the court that the pharmacy statements do not conceal facts from Hopkins, because the facts of the case are discoverable. Coburn, 101 Wn.2d at 277; Anderson, 103 Wn.2d at 906.

Considering this distinction between facts and hospital committee review, the Kansas Supreme Court took the point to a constitutional level in concluding that, despite the limited discovery immunity available to hospitals for certain peer review information, medical malpractice plaintiffs have a fundamental constitutional right to have access to all the relevant facts. In Adams v. St. Francis Regional Med. Ctr., 264 Kan. 144, 955 P.2d 1169, 1187-88 (1998), a woman died in the hospital as the result of a ruptured ectopic pregnancy. The woman’s parents sued for medical malpractice based on the emergency room nurse’s failure to alert a physician to the patient’s need for immediate attention. The trial court granted the hospital’s motions for protective orders over documents generated by the hospital as well as documents generated by the state nursing board. The court reversed, concluding the nursing board documents were not protected by the hospital’s statutory peer review privilege and the hospital documents were not fully protected by that privilege either:

In the present case the legislature granted a peer review privilege to health care providers to maintain staff competency by encouraging frank and open discussions and thus improving the quality of medical care in Kansas. We must weigh that privilege against the plaintiffs’ right to due process and the judicial need for the fair administration of justice. There can be no question that in granting the privilege, the legislature did not intend to restrict or eliminate a plaintiff’s right to bring a medical malpractice action against a health care provider. To allow the hospital here to insulate from discovery the facts and information which go to the heart of the plaintiffs’ claim would deny plaintiffs that right and, in the words of the federal court, “raise significant constitutional implications.” . . .

In the present case, we conclude that although the interest in creating a statutory peer review privilege is strong, it is outweighed by the fundamental right of the plaintiffs to have access to all the relevant facts. . . . Forms and documents containing factual accounts and witnesses’ names are not protected simply because they also contained the officers’ or committee’s conclusions or decision-making process. The court can simply redact that which is protected and grant plaintiffs access to the portions containing the relevant facts.

Adams, 955 P.2d at 1187-88.

Limiting RCW 70.41.200(3) to its intended purpose, one cannot find in the statute or its legislative history a goal to protect from discovery all information and documents relating to a matter that a hospital quality improvement committee subsequently considers. In construing a statute, the court must give words their ordinary and usual meaning. Coburn v. Seda, 101 Wn.2d 270, 273, 677 P.2d 173 (1984). The plain and ordinary meaning of “specifically” is “explicitly set forth; definite”; “limited;” “particular.” The American Heritage Dictionary 1173 (2d college ed. 1982); Webster’s New World College Dictionary 1287 (3d ed. 1997); To give logical effect to the statute and ordinary and usual meaning to its terms, “created specifically for” a quality improvement committee must signify that a document is created specifically and only for the quality improvement committee itself. That is the plain and unmistakable meaning the trial court gave to the statute, and that is the only meaning that satisfies the legislative goal of protecting the quality improvement process while still furthering the common law and general policy favoring discovery. As Judge Krese clearly articulated, the integrity of quality improvement—the protection of which is the obvious purpose of discovery immunity—would be damaged by Stevens Hospital’s broad interpretation of RCW 70.41.200(3). Affirming the trial court’s strict and logical construction, however, furthers the Legislature’s purpose.

Historically, incident reports have been discoverable. Courts across the country have required hospitals to produce incident reports created in the ordinary course of the hospital’s business, not in anticipation of litigation (as might be protected under the work product doctrine). Davidson v. Light, 79 F.R.D. 137 (D. Colo. 1978) (relied on in Coburn, 101 Wn.2d at 278; court ordered hospital to produce Infection Control Report, akin to incident report, because it related to specific incident and single patient, rather than general desire for improvement); Cook v. Wake County Hosp. System, Inc., 125 N.C. App. 618, 482 S.E.2d 546, 550-52 (1997) (accident report prepared by hospital’s employee was not prepared in anticipation of litigation and was discoverable; hospital’s accident reporting policy served a number of nonlitigation, business purposes, which impose continuing duty on hospital employees to report extraordinary occurrences to risk management); Shotwell v. Winthrop Community Hosp., 26 Mass. App. Ct. 1014, 531 N.E.2d 269 (1988) (incident reports held in quality assurance department and reviewed by administrative personnel to propose possible corrective measures were not protected work product but were discoverable as prepared in the ordinary line of business and duty); St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 150-51 (Mo. Ct. App. 1984); Vendenburgh v. Columbia Memorial Hosp., 91 A.D.2d 710, 457 N.Y.S.2d 591 (1982); Kaiser v. South Nassau Communities Hosp., 58 A.D.2d 643, 396 N.Y.S.2d 54 (1977); Bernardi v. Community Hosp. Ass’n, 166 Colo. 280, 443 P.2d 708, 714-16 (1968); Stewart v. Roosevelt Hosp., 22 A.D.2d 648, 252 N.Y.S.2d 968 (1964). Incident reports prepared in the ordinary course of business would normally not be protected in any institution. See CR 26(b)(4); Heidebrink v. Moriwaki, 104 Wn.2d 392, 397-400, 706 P.2d 212 (1985); Thomas Organ Co. v. Jadranska Slobodna Providba, 54 F.R.D. 367 (N.D. Ill. 1972).

The language of the statutes confirms its extremely limited nature: to attain immunity under RCW 70.41.200(3), information must have been “created specifically for” the quality improvement committee, and the immunity runs only to the “content” of such information, not collateral matters such as the circumstances under which it was collected, who provided the information, the composition of the quality improvement committee, when it met, and who attended the meetings. Any incident report or investigation regarding the overdose that Stevens Hospital administered to Nolan Hopkins is discoverable unless “created specifically for, and collected, and maintained by a quality improvement committee”. Nevertheless, in discovery, Stevens Hospital steadfastly refused to provide information about the statements and even instructed witnesses not to answer questions about them in depositions.

While no cases directly construe the quality improvement statute,[3] Division 2 of this court recently published a decision in a very analogous context, rejecting arguments virtually identical to Stevens Hospital’s. In Guillen v. Pierce County, 96 Wn. App. 862, 982 P.2d 123 (1999), review granted, 139 Wn.2d 1015 (2000), the county refused to disclose accident reports regarding an intersection at which the plaintiff’s wife was killed and her passengers injured. Both the county’s public works department and law enforcement officers had collected information about the intersection—the public works department for the purpose of federal funding, and the law enforcement officers for accident investigation. In refusing disclosure, the county relied on a federal statute, 23 U.SC. § 409 (section 409), which immunizes from discovery all reports and data compiled or collected for safety enhancement of potential accident sites or for highway safety construction improvement using federal aid highway funds. The purpose of this statute is to facilitate the free flow of safety-related information and candor in administrative evaluations of highway safety hazards. Guillen, 96 Wn. App. at 870. A related federal statute, section 152, describes a funding program under which the federal government pays much of the cost of improving hazardous public roads. In turn, section 152 requires states to maintain an engineering survey of all public roads to identify hazardous locations to motorists and others.

The county argued that once the road department collects reports under section 152, the public no longer has access to them in any form, whether seeking accident reports from the sheriff (law enforcement) or accept reports collected by the road department. This court held that the county’s interpretation “contravenes the plain meaning of Section 409.” Guillen, 96 Wn. App. at 872. Section 409 “does not protect reports or data collected by” an agency such as law enforcement that collects or compiles information for purposes unrelated to the funding program in section 152. Guillen, 96 Wn. App. at 871. Section 409 does, however, protect reports or data collected by an agency such as a public works department that collects and compiles information “for the purpose of identifying, evaluating, or planning the safety enhancement of . . . hazardous roadway conditions . . . pursuant to” section 152. Guillen, 96 Wn. App. at 871 (quoting section 409). The court observed that the county’s argument “would extend Section 409 far beyond its purpose.”

As already seen, that purpose is to neutralize the litigation-aiding effect, if any, of Section 152 activity. It is not to exempt from discovery and admissibility reports or data unrelated to Section 152 activity.

Finally, the County’s argument, if accepted, would give the County carte blanche to render immune from discovery every accident report related to a public road within its territory, simply by having its road department “collect” the report. This result is absurd, and we see no indication that Congress intended it.

Guillen, 96 Wn. App. at 872. The court affirmed the trial court’s order to disclose accident reports pertaining to the intersection, as “carefully” requested by Guillen from the sheriff or other law enforcement agencies, not collected or compiled by the public works department pursuant to Section 152. Guillen, 96 Wn. App. at 873. The court affirmed the award of Guillen’s attorney fees and also awarded Guillen his attorney fees on appeal. Guillen, 96 Wn. App. at 874-75. The Supreme Court has granted review of this decision and the parties await a decision.

Stevens Hospital’s arguments and reasoning here are strikingly similar to Pierce County’s, and this court can reject them on the same solid grounds as Judge Dean Morgan did in his opinion.

Stevens Hospital had the burden of establishing that the statute immunizes the statements Gordon Oakes took from his staff. Adcox, 123 Wn.2d at 31. But Stevens Hospital has never met this burden in the course of its several attempts to resist producing the statements. Pharmacy Director testified that he obtained the pharmacy personnel statements completely independent of any quality improvement process, placing them explicitly outside the protection of RCW 70.41.200(3). Mr. Oakes testified that he learned of the overdose given to Nolan the morning after it happened: one of his staff pharmacists (not risk management or quality improvement) told him when he came in. When he heard about the overdose, he immediately began his own investigation (he never said that he immediately called risk management). He asked the pharmacy staff members involved in this event to write statements for him (not for risk management, quality improvement, or any other person or committee). Mr. Oakes, as Pharmacy Director, collected the statements on his own. He would have done so even if there were no quality improvement process. Mr. Oakes was not on a quality improvement committee. No one in the quality improvement department or committee asked or directed him to obtain the statements. The first time he spoke with risk management was not before he began his own investigation and gathered statements from pharmacy staff, but afterwards, to notify them what he was doing.

Mr. Oakes’ testimony provided the foundation for the commissioner’s findings of fact affirmed by the trial court’s June 6, 2001 order. The commissioner found:

1. The records submitted for in camera review were statements, both handwritten and typed, from pharmacy personnel on duty during the time that Nolan Hopkins received a dosage of the drug in question.

. . .

5. The statements of the pharmacy staff are contained in, or attached to, a memo dated August 27, 1999 and directed to Lorie Kelly from pharmacy director Gordon Oakes.

6. Gordon Oakes acquired the statements of his own volition. He testified in deposition that he had reasons to acquire the statement independent of any quality assurance process, and would have done so regardless. He was not a member of a quality improvement committee and was not directed by a quality improvement committee to acquire the statements in question. The statements were not acquired specifically for and collected by a quality improvement committee.

7. The court finds that these statements are not privileged and are discoverable.

Commissioner Bedle’s May 15, 2001 Order on in camera review.[4]

Strictly construing RCW 70.41.200(3) together with Mr. Oakes’ testimony, there is no room for interpretation, debate, or reversal. The statements came to exist independently of any quality improvement process. The quality improvement statute does not protect the statements. They constitute discoverable evidence. The Superior Court Commissioner and the reviewing Superior Court Judge ruled correctly in ordering Stevens Hospital to disclose the statements.

Hopkins filed the complaint in this case on May 24, 2000, and served her first interrogatories on Stevens Hospital on May 30, 2000. The hospital supplied little substantive information in response. Most relevant here, in answering the interrogatories, Stevens Hospital concealed the identity of Levita Rigates, the pharmacy technician who mixed the fateful aminophylline loading dose that poisoned Nolan Hopkins. Stevens Hospital undoubtedly knew of Ms. Rigates because Gordon Oakes took a statement from her and 3 other pharmacy staff people on August 26, 1999, which risk management had in its possession.

On February 9, 2001, the commissioner issued a letter ruling, concluding the pharmacy personnel statements taken by Gordon Oakes were not privileged. Stevens Hospital then moved for revision of the letter ruling. At the urging of Stevens Hospital’s counsel, despite CR 54(a)(2), the court found that motion to be premature until a formal order was entered. The formal order is the commissioner’s May 15, 2001 Order on in camera review. The May 15, 2001 order prompted Stevens Hospital to move again for revision, and it is the court’s June 6, 2001 order denying the motion for revision that Stevens Hospital now seeks to appeal.

The following provides a chronological summary of relevant discovery motions and orders:

May 30, 2000
Hopkins serves her first interrogatories on Stevens Hospital.

November 8, 2000
Hopkins files motion for contempt and to compel discovery from Stevens Hospital.

November 30, 2000 (first order requiring production of pharmacy statements)
Commissioner enters Order on Plaintiffs’ motion for contempt and to compel discovery, including ordering Stevens Hospital to produce statements to him in camera and sanctioning hospital $2000.

December 11, 2000 (first motion by Stevens Hospital resisting order to produce pharmacy statements)
Hospital moves for revision of order on motion for contempt.

December 20, 2000
Judge Krese denies motion for revision in part and grants in part. Judge Krese affirms order to produce pharmacy statements in camera.

February 9, 2001 (second order requiring production of pharmacy statements)
Commissioner issues letter ruling ordering hospital to produce pharmacy statements.

February 23, 2001 (Stevens Hospital’s second motion for revision, resisting production of pharmacy statements)
Hospital moves for revision of commissioner’s letter ruling.

March 27, 2001
Judge Krese rules that hospital’s motion for revision is premature, as the letter ruling is not a formal order.

May 15, 2001 (third order requiring production of pharmacy statements)
Commissioner enters formal order, with findings of fact and conclusions of law, requiring hospital to produce pharmacy statements.

May 24, 2000 (Stevens Hospital’s third motion resisting production of pharmacy statements)
Hospital moves for revision of May 15, 2001 order.

June 6, 2001 (fourth order requiring production of pharmacy statements)
Judge Krese denies motion to revise, compels hospital to produce statements by 5 pm that day, and orders $500 each day that hospital fails to produce.

June 6, 2001 (fourth attempt to resist production of pharmacy statements)
Hospital files notice of discretionary review in Court of Appeals, Division One.

June 7, 2001
Hospital moves Court of Appeals for emergency stay of June 6, 2001 order.

In the June 6, 2001 order, the court:

(1) Denied the hospital’s motion to revise the commissioner’s order requiring the hospital to produce statements taken by Pharmacy Director Gordon Oakes from his pharmacy staff;

(2) Affirmed the commissioner’s order requiring production of the statements, which itself was based on ;

(3) Shortened the deadline Hopkins had requested for Stevens to produce the statements from 2 days to 5:00 p.m. that day, June 6, 2001 (thus reflecting the court’s desire to put an end to Stevens Hospital’s repeated violation of discovery rules and orders);

(4) Granted Hopkins’ request for sanctions, imposing terms of $500 for each day that Stevens Hospital failed to produce the pharmacy statements.

There is absolutely no evidence that Gordon Oakes collected the pharmacy statements, or that his staff provided them, specifically for any quality improvement committee or program. The evidence is totally to the contrary. Mr. Oakes’ testimony refutes the hospital’s misrepresentation of how and when he obtained the statements and when he called Risk Manager Lorie Kelley. And of course, risk management is not quality improvement. Mr. Oakes, a Stevens Hospital employee, has not filed any declaration contradicting his deposition testimony. Lori Kelley has not been deposed and has filed no declaration regarding her conversation with Mr. Oakes. The only evidence Stevens Hospital submits is its lawyer’s argument without facts.

Mr. Oakes clearly said he began his investigation before he spoke to Ms. Kelley.[5] No one, including Ms. Kelley, told him to obtain the statements. He did not collect the statements for or at the direction of a quality review committee. There is no testimony contrary to Mr. Oakes’. Hopkins moves to strike all references to Mr. Oakes calling Lorie Kelley before he obtained the pharmacy statements.

In addition, there is no evidence in the record—only counsel’s representation—that Lori Kelley “made notes” of her conversation with Mr. Oakes or that she stapled such notes to an incident report form. This too should be stricken.

Stevens Hospital has presented no evidence that a hospital quality improvement committee ever considered Nolan Hopkins’ overdose. The administrative representative of the hospital’s quality improvement committee, Stevens Hospital CEO Steve McCrary, who is a regular participant in the quality improvement committee meetings, testified that he had never seen the pharmacy statements obtained by Gordon Oakes or the incident report(s). If Mr. McCrary did not see the pharmacy statements or incident reports, it is difficult to believe that there was a quality improvement committee review of Nolan Hopkins’ overdose. It is simply not credible that the pharmacy statements were ever a part of this process.

[1] E.g., 1986 Senate Journal, at 1095 (March 7, 1986) (Senator Talmadge remarked, “I think it’s a very strong bill for medical discipline.”)

[2] In Coburn v. Seda, our Supreme Court noted that though the terms immunity and privilege are used interchangeably, “immunity is a subset of privilege. An immunity may make a matter nondiscoverable but does not control its potential admissibility at trial. In contrast, privilege is a rule of evidence expressly incorporated into the rules of discovery. . . . A matter which is privileged is both nondiscoverable and inadmissible.” 101 Wn.2d at 273-74. As in Coburn, this court need not address whether the pharmacy statements are nonprivileged and admissible because only their discovery is at issue here. Coburn, 101 Wn.2d at 276.

[3] There are no Washington cases interpreting RCW 70.41.200(3) involving quality improvement committees; accordingly, the court may follow the cases interpreting the similar peer review statute, RCW 4.24.250, under which certain activities of a hospital’s regularly constituted peer review committee are immune from discovery.

[4] When an injured person seeks to discover incident reports in a hospital’s risk management/insurance file, courts have presumed that the incident reports, even if ultimately used to improve the quality of hospital care, are not prepared in anticipation of litigation, but rather in the ordinary course of hospital business. Kay Laboratories, Inc., v. District Court, 653 P.2d 721 (Colo. 1982). Here, Mr. Oakes’ testimony makes it apparent that risk management ran the quality improvement process at Stevens Hospital, or they are one and the same. Arguably, without the quality improvement statute, the incident reports would also be discoverable here.