Sometimes, unexpected, bad things happen in hospitals. When an unexpected, bad thing happens, hospitals create a report to document the event. This is called an “incident report.” Some typical mistakes that generate incident reports are falls, medication errors, or surgical mistakes like a retained sponge. In an incident report, the hospital documents when the mistake occurred, who was present, and what happened.
Hospitals, for obvious reasons, do not like to give patients reports that document the mistake that caused their injury. For decades, however, a person injured by the hospital's mistake could obtain from the hospital the incident report. This was decided in a case called John C. Lincoln v. Giordano, 159 Ariz. 456, 758 P.2d. 188 (App. 1989), and it was the establish rule that hospitals had to follow.
Recently, Arizona hospitals are trying to block patients from getting incident reports about the care hospitals provided to them based on a new argument – the Federal Patient Safety and Quality Improvement Act, 42 U.S.C. 299B-21 (“The Act”). This law invites hospitals to voluntarily share information about mistakes that occur in their hospitals. This was intended to encourage hospitals to share information about their mistakes so it could be analyzed and quality improvements could be made.
This voluntary law, however, was never intended to shield a hospital from complying with a state's laws that already require a hospital to create and store incident reports. In Arizona, hospitals are required by various administrative rules, including R9-10-204, to identify, document, and evaluate incidents. The cases interpreting the Act hold that where a state law already requires a hospital to prepare incident reports, the federal law does not now add a new layer of protection from disclosure to the patient. Baptist Health Richmond v. Clouse and Agee, 497 S.W. 3d 759 (Ken. 2015); Charles v. Southern Baptists Hospital, 209 So.3d 1199 (Fla. 2017).
The bottom line is that when an Arizona hospitals makes a mistake and causes an injury, it cannot keep the report documenting that mistake from a patient.