Courting Justice: What Happens in Hospitals Stays in Hospitals

October 2, 2014

Everyone’s heard the saying, “What happens in Vegas stays in Vegas.” This week, the New Jersey Supreme Court applied this thinking to—of all things—hospitals.

Imagine going into a hospital for an operation. When you wake from anesthesia, you learn that things went horribly wrong and you’re permanently injured. You say “What happened?” and are told the hospital is going to convene a meeting of everyone involved to get to the bottom of why things went bad.

And then you’re told you’re not entitled to hear what they find out.

In most states, there are laws making determinations of such in-hospital investigations of “adverse patient events” confidential. You, even as the patient involved, are not entitled to know what was discovered, nor is your attorney permitted to review any documentation generated by the in-hospital review.

The rational for such laws is that such confidentiality is vital if you want to encourage health care workers to candidly disclose their observations and concerns, free from fear their disclosures will be used against them or the hospital in a lawsuit.

Believe it or not, I really don’t have a problem with this rule. I get it. I have to live in this world, too, and if keeping self-critical analysis confidential will promote best practices and patient safety, I’m all for it. In most cases, there are other ways an attorney can obtain the information needed to prove medical negligence.

But if I am going to abide by this law, then hospitals should have to as well. When they don’t, the information generated at these quality-assurance reviews should not be shrouded in confidentiality. The laws granting confidentiality also lay out a process hospitals must follow when conducting these in-house reviews. If a hospital chooses not to follow this statutory procedure, then they should lose benefits of confidentiality.

This week, the Supreme Court of New Jersey issued its long-awaited opinion in the case of C.A. v. Bentolila, M.D. In that case, the plaintiff gave birth to a baby with severe brain damage and claimed that it was a result of negligent perinatal care she received in the hospital. Following the birth, the hospital conducted an investigation of what happened during the delivery, but did not follow the statutory process set forth in the state’s laws.

In a close 4-to-3 decision, the New Jersey Supreme Court held that the notes were confidential and the process followed met the requirements of the statute. Remember, though, that three members of the Court looked at the same set of facts and found that the statutory process was not followed.

Perhaps I’m just a jaded old lawyer. But when I see such a closely-decided ruling from any court on an issue like this, I think it really comes down to which way one leans: either in favor of a patient’s right to know, or in favor of protecting insurance companies from lawsuits.

If there was sufficient doubt the hospital met the requirements for confidentiality—particularly in a case where the only way the plaintiff could know what happened is from the findings of the committee—then (in my opinion) fairness dictates the hospital should not get the benefit of confidentiality. Confidentiality should only apply when we can all be certain the process was conducted in a way that it could truly lead to better patient care.

Absent that, knowledge trumps confidentiality. No matter where it happens.