Editor’s note: This article is by Robert Audette, of the Brattleboro Reformer, in which it was first published Feb. 2, 2016.
BRATTLEBORO — A federal judge denied a request to produce communications between the Brattleboro Retreat, the Joint Commission and a Massachusetts-based HMO. But, noted the judge, incident reports similar to an attempted suicide in May 2014 are not privileged. The judge ordered those documents turned over to attorneys for a family that is suing the Retreat after their daughter died of injuries sustained during a suicide attempt while an inpatient at the mental health facility.
Judge Geoffrey Crawford, of the U.S. District Court for the District of Vermont, noted that Vermont’s medical peer-review statute protects documents produced during peer-review committees “and shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services …”
The proceedings are considered confidential to “protect candor in peer review proceedings.” The Joint Commission fulfills an accrediting function of the federal Centers for Medicare and Medicaid Services, which regulates the provision of health care by facilities that receive federal funds.
“In the case of so-called ‘sentinel events’ such as untimely death, the Joint Commission conducts a review focused on the reasons for the incident and the steps taken to improve care in the future,” wrote Crawford. “Such an investigation is precisely the sort of proceeding contemplated by the Vermont peer-review statute.”
Another investigation was conducted by Health New England, the Massachusetts HMO that paid for the care of the teenager who attempted suicide at the Retreat.
The 15-year-old girl, of Northampton, Mass., later died of injuries sustained during the attempt. The suit was filed against the Brattleboro Retreat in March 2015 in U.S. District Court in Vermont.
The investigation conducted by Health New England “focused on issues of quality care and whether professional errors occurred which were responsible for the tragic event,” noted Crawford. Such an investigation is also covered under Vermont’s peer-review statute, he wrote.
While Vermont statutes do not cover “conversations and documents arising in the course of ordinary business operations,” noted Crawford, investigations by the Joint Commission and Health New England “are very different than a mere conversation between staff about ‘quality control.'”
Communications were between participants in a peer-review process, wrote the judge. “Plaintiff’s position, if adopted, would effectively repeal the peer-review privilege …”
However, noted the judge, documents produced by the Retreat in similar incidents should be provided to the plaintiff’s attorneys but it is up to the two parties to determine the scope of the request within which to search for similar incidents. If the parties cannot agree on “a reasonable amount” of time, the judge will set the parameters. Crawford wrote that all identifying information in the incident reports should be redacted to protect the patients.
