health plan to make a decision about list- ing that physician as covered under the health plan. While physicians may claim that they
no longer have the application, they must know the name of each health plan with which they have a contract, and those entities must maintain information about the individual physicians, includ- ing any reports from the National Practitioner Data Bank, which includes all reports of settlement, regardless of the amount or circumstances. The California Medical Board requires a report for any settlement greater than $30,000 but the NPDB has no bottom limit for reporting. Larger groups of physicians, such as
the Permanente Medical Group, which employs and provides physicians for all Kaiser Foundation Hospitals, usually have clinical practice guidelines for vari- ous medical issues or conditions. Even in hospitals where the physicians are “inde- pendent contractors,” there may be clini- cal practice guidelines that apply to the physicians as well as nurses. In all rele- vant cases, a request should be made for all clinical practice guidelines that may exist on specific subjects that are relevant to the plaintiff ’s care. While the defense may claim that such guidelines are not the standard of care, it is very difficult for any defense expert to ignore or refute specific care recommendations in the clinical practice guidelines for a specific hospital or medical group.
Discovery from the state Under California Health & Safety
Code section 1279.1, which was enacted in 2007, all hospitals in California are required to report certain “adverse events” to the State Dept. of Health Care Services no later than five days after the event was detected. The Department then conducts an investigation of the event at the hospital and can fine the hospital between $25,000 and $100,000 depending on the severity of the event and the history of prior such events. Between Jan. 1, 2009, and Jan. 1, 2015, the state must make any reports of inves- tigations “readily available to the public,”
and by Jan. 1, 2015, these reports will be posted on the Department’s Web site. While many of the 28 specific adverse events may not be applicable to a specific medical-malpractice case, the last catego- ry is “an adverse event or series of adverse events that cause the death or serious disability of a patient.” Most medical-malpractice cases
would easily fit into this category, but hospitals only report the obvious events of wrong-site surgery, or a retained for- eign body, and some do not even report these obvious adverse events. As early as possible in any medical malpractice case, which may be a notice of intent to sue under section 364 of the Code of Civil Procedure, the hospital should be put on notice that the incident falls within the definition of section 1279.1 (b) (7), and a request should be made for the report of any investigation. If the hospital did not, or does not
file a report in response to being placed on notice by the plaintiff ’s attorney, the deposition of the person most responsi- ble or knowledgeable about such section 1279.1 reports should be taken to deter- mine why such a report was not made. Often, this person is either the Hospital Risk Manager or Director of Nurses, who will sometimes admit that a report should have been sent, but they never knew about the event. The main advantage of any such sec-
tion 1279.1 report is that it is based on an early investigation of the event at the hospital, and will often identify individals who were interviewed in the investiga- tion, and many of the witnesses who were not directly involved in the patient’s medical care, such as supervisors. The report will black out the name of the individual, but will identify by title, and that is sufficient to ask the hospital to provide the name and any such witness for deposition. At deposition, some wit- nesses will deny the statements made to the investigator. This may be used for impeachment at deposition, and thus at trial, but the report itself and the conclu- sion and/or fine are all hearsay and thus cannot be directly used at trial. However, as an important discovery tool, it can
FEBRUARY 2012 The Advocate Magazine — 79
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