Legal Privilege and Hospital Patient Grievance Records
by Lisa Venn, J.D., M.A.
This article examines the issue of whether hospital patient grievance records are privileged i.e. protected from discovery when a patient sues a hospital and requests the production of the patient grievance file.
In 1999, the Health Care Financing Administration (HCFA; later renamed the Centers for Medicare and Medicaid Services or CMS) mandated that hospitals establish a patient grievance process. Effective September 19, 2005, CMS issued Interpretive Guidelines clarifying the patient grievance process, requiring hospitals to identify a grievance committee to investigate and resolve patient grievances. CMS mandated that in its resolution of the patient grievance, the grievance committee must provide the patient with written notice of its decision. This notice must include the name of the hospital contact person, the steps taken on behalf of the patient to investigate the grievance, the results of the grievance process, and the date the grievance investigation was completed. CMS also requires hospitals to document its efforts to resolve the grievance and demonstrate compliance with CMS requirements.
In the course of its investigation, the grievance committee will often incorporate into its documentation information generated by the hospital’s peer review or quality assurance committee. During its investigation, the grievance committee may also seek the direction from the hospital’s legal counsel and document the legal advice into the patient grievance record. Particularly in the case of smaller hospitals, the grievance committee might function as the hospital’s quality assurance, peer review and risk management departments.
Whether the patient grievance file is privileged may well depend upon (1) whether the federal or state court hears the case; and (2) whether the party seeking the privilege can convince the court that the grievance committee and its records fall under an available statutory privilege.
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