Discoverability of Personnel Files

In D’Angelo v. U.S., a medical malpractice and negligent hiring action against Veterans Administration Hospital, the court allowed the plaintiff to discover specific information contained in three doctors’ personnel files, specifically, "any and all records of patient complaints, disciplinary action, staff review of performance, malpractice actions (actual or threatened), job applications, review of job applications, performance evaluations, or other records showing the suitability or non-suitability of these three doctors." D’Angelo v. U.S., 588 F. Supp. 9, 10 (W.D.N.Y. 1983).

In In re Lavernia Nursing Facility, Inc., the plaintiff’s heir brought suit against a nursing home, alleging that the patient had been sexually assaulted by a sixteen-year-old, unlicensed nurse aid employed by the nursing home. The plaintiff sought the personnel file of the nurse aid. The court of appeals of Texas upheld sanctions against the nursing home for failing to produce the "entire" personnel file. The court also held that "personnel file" means every record kept on the employee in question even though a "file" may not be kept together in the same location. Id.

Similarly, defendant health care organizations have been found to lack standing to assert their employees privacy interests in requested personnel files. When faced with an objection based on the privacy rights of the employee, courts have rejected such objections requiring the production of employment and personnel records. In the seminal case of Alterra Health Care Corp. v. Shelley, the Court held that an assisted living facility lacked standing to deny a discovery request of personnel files by asserting the constitutional right of privacy of employees. Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla. 2002). The court specifically disapproved Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So. 2d 778 (Fla. 5th Dist. Ct. App. 2000), which had held that a private employer had standing to assert the privacy rights of its employees.

In another case, the court held that a hospital did not have standing to assert the privacy rights of its nurses: A mere employee/employer relationship is not the kind of special relationship necessary for third party standing. North Florida Regional Hospital Inc., v. Douglas 454 So. 2d 759 (Fla. 1st Dist. Ct. App. 1984); See also, e.g. Humphreys v. Caldwell, 881 S.W.2d 940 (Tex. App. 1994) (a bad faith and unfair settlement practices case in which the Court affirmed the trial courts ruling that an insurance company’s conclusory allegations that its personnel files were private did not impose any duty on the trial court).

Incident/Accident 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.

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Boone Retirement Center, Inc. v. Hamilton, 946 SW 2d. 740( MO. 1997) as standing for the proposition that quality assurance records are not discoverable in a civil case such as the case at bar. The Defendant’s interpretation of Boone is incorrect.

 In Boone, the State of Missouri Division on Aging conducted inspections of Boone Retirement Center and found many critical areas where the facility was deficient. The State’s Attorney General initiated a criminal investigation, including the issuance of a criminal subpoena seeking records of the facility’s quality assurance committee. The facility refused citing the above statute. It later filed a writ of prohibition after the Judge issued an order for production.

 The Missouri Supreme Court carefully reviewed the statute, paying particular attention to the definition of “State” in the context of the case. In essence, the Court interpreted the federal statutory definition of “State” and determined that a grand jury, a creature of the State, is within the definition of State since it was the State prosecuting the Defendant. Boone is easily distinguishable from the case at bar.

 Quite simply, this Plaintiff is not the “State”. If Congress had intended that persons other than the State be prohibited from discovering quality assurance information, it would have so stated. The prohibition of production does not, therefore, apply in this case. And this makes sense. The obvious purpose of limiting the State from access to these records is to ensure the effectiveness of the process. Since the State regulates and inspects the facility, the facility would hesitate to accumulate information and prepare accurate reports that could ultimately be incriminating if the State has access to the information.

However, in the case at bar, civil litigation is not a common occurrence (such as annual State inspections) that would cause the facility to be less than accurate when conducting quality assurance. As such, the purposes behind prohibition of discovery are not thwarted. Even if this court wished to extend the definition of State to this case, none of the documents relied upon by the quality assurance committee would be included. The Boone court was very clear on this issue. The statute limits the scope of non-production to “records of such committee” and does not extend to records and materials generated or created outside the committee and submitted to the committee for its review. See Boone @ 743. If this Court prohibits production of the Defendants records generated by the quality assurance committee, it should not limit production of materials and information relied upon by the committee.

In cases where the medical records contain peripheral,
non medical information, courts have ruled such
information is not privileged. See Ashford vs
Brunswich Psychiatric Center
, 456 NYS 2d 96, (1982),
Moore vs St. John’s Episcopal Hospital, 452 NYS2d 669
(1982).

Notes written by a nurse are generally not protected
by the physician-patient privilege. See Weis v Weis,
72 NE2d 245. Weis is a leading case on this issue. In
Weis the court held that because the statute governing
the physician-patient privilege made no mention of
communications between a nurse and a patient, any
information given to a nurse was not privileged. This
case illustrates the trend seen in many cases where
the courts have interpreted the physician-patient
privilege. The privilege did not exist at common law
and courts construe the statute narrowly.