Discovery of Incident Reports
Incident reports are generated in the regular course of business of the nursing home any time there is an unusual occurrence related to a resident. These are required to be created both by DHEC and by OBRA, and any incident report should list any and all witnesses to an incident or occurrence, as well as a brief summary of what that witness knows. Additionally, this would provide evidence of notice, foreseeability and awareness of a dangerous condition.
This information has been found to be discoverable in the past. In Peacock v. HCP III Eastman, Inc., 497 S.E.2d 253 (Ga.Ct.App. 1998), the Court allowed the discovery of the nursing homes’ incident reports. The Court explained that these reports were relevant in light of Plaintiff’s claim for punitive damages. The Court also concluded that “the similar acts evidence might be admissible in both the liability and punitive damages phases of the trial and could show the [facility] had notice its employees were not properly supervising residents. . .” Id., citing Apple Investment Properties v. Watts, 469 S.E.2d 256 (1996).
The Court in both Peacock and Watts, supra, rejected the Defendant’s arguments that because the reports contained personal information about the residents they were privileged. The Court concluded that it could protect the residents’ personal information by limiting the use and dissemination of the records. Id. This can be accomplished by redacting the names of the residents.
In Cochran v. St. Paul Ins. Co., 90 F.Supp. 641 (W.D. Ark. 1995) the Court affirmed the trial court’s order allowing incident reports concerning nonparty patients to be produced in discovery. The Court held that incident reports are not part of a patient’s medical record therefore, it is not privileged information.
The court cannot now say that the other incident reports will not be admissible evidence or lead to the discovery of admissible evidence. The defendant’s concern regarding the patient privilege is removed by the phrasing of plaintiffs’ document request. Plaintiff requests only redacted copies which omit the patient’s name. Id.
In Mitchell v. State, 491 So.2d 596 (Fla. 1986) the court allowed the discovery and admissibility of documents and evidence related to other resident’s treatment at a facility similar to the Defendants’ at bar. The Court held that this information was admissible (therefore discoverable) to show “knowledge and absence of mistake on the part of [Defendant].” Id.
Evidence of the prevalence of the conditions and improper treatment throughout the [facility] was relevant to counter an inference that the conditions giving rise to the named victims’ injuries were isolated instances beyond the defendant’s knowledge and control. In proving that the care of these victims amounted to abuse and exploitation, the state could not fairly be expected to keep out testimony of general activities of [Defendant] and his staff which affected not only these victims but other residents in the facility as well. Id.
In Amente v. Newman, 653 S.2d 1030 (Fla. 1995) the court affirmed the trial court’s order allowing discovery of medical records as long as the records were redacted to protect the patients’ identities.
There may be circumstances under which a person would have a constitutional privacy right with respect to his or her medical records. However, in this instance, we find that the patients’ right of privacy and the confidentiality of the patients’ medical records are protected by the trial judge’s requirement that all identifying information be redacted from the medical records. Id.