Q: Violation that is not in medical records. Discovery

A: Under California law, incident reports prepared for risk management purposes are generally considered protected from discovery under Evidence Code Section 1157. This section provides a privilege for records and proceedings of organized committees that review the quality of medical care, such as peer review committees. The purpose of this privilege is to encourage candid discussions and evaluations to improve the quality of care.

However, there are some strategies a plaintiff can use to try to obtain relevant information:

1. Argue that the incident report was not prepared for quality assurance purposes: If the plaintiff can demonstrate that the incident report was prepared for a purpose other than quality assurance or peer review, such as for routine administrative or business purposes, it may be discoverable.

2. Depose witnesses: Although the incident report itself may be protected, the plaintiff can depose witnesses who have knowledge of the incident, including risk management personnel, to obtain relevant information.

3. Subpoena other documents: While the incident report may be privileged, other documents related to the incident, such as patient charts, nursing notes, or policies and procedures, may be discoverable.

4. Argue the need for an in-camera review: In some cases, a court may agree to review the incident report in-camera (privately) to determine if it contains information that is essential to the plaintiff's case and not available from other sources. If so, the court may order the disclosure of certain portions of the report.

5. Argue waiver of privilege: If the hospital or its staff have disclosed the contents of the incident report to third parties or put the report at issue in the litigation, they may have waived the privilege.

It's important to note that overcoming the Section 1157 privilege can be challenging, and the specific strategies will depend on the facts of the case. An experienced medical malpractice attorney can help navigate these issues and develop the best approach for obtaining relevant information.