from the Iowa District Court for Johnson County, Mitchell E.
State appeals from a district court ruling granting
plaintiff's motion to compel discovery. REVERSED AND
J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, and Forrest Guddall (until withdrawal) and Anne
Updegraff, Assistant Attorneys General, for appellant.
J. Reilly of Eells & Tronvold Law Offices, PLC, Cedar
Rapids, for appellee.
Eckley, Des Moines, and T. Randall Wright of Baird Holm LLP,
Omaha, Nebraska, for amicus curiae Iowa Hospital Association.
Drey, Jeanine Freeman, and Allison M. Steuterman of Brick
Gentry, P.C., West Des Moines, for amici curiae American
Medical Association and Iowa Medical Society.
interlocutory appeal, we are asked to determine whether a
hospital's Patient Safety Net materials are protected
under the morbidity and mortality privilege, and whether this
information is discoverable in this medical negligence
action. Dennis Willard was seriously injured in a motor
vehicle accident in Davenport, Iowa. After initial treatment
in Davenport, Willard was transferred to the University of
Iowa Hospitals and Clinics (UIHC) for further treatment.
Because of the seriousness of his injuries, he was sedated
and intubated. During his treatment at UIHC, Willard
underwent a number of medical examinations and tests, one of
which was an abdominal CT scan. Willard claims that while
being transported to the CT scan and while undergoing the CT
scan, UIHC was negligent in its handling of him. As a result,
Willard claims he sustained an injury to his left shoulder
and arm, in addition to his foot. After the CT scan, an
employee of UIHC filed a PSN form about the incident. As part
of his lawsuit for medical negligence against the State of
Iowa,  Willard requested discovery of
the PSN and related documents. The State objected to the
disclosure of the PSN and related documents, claiming the
documents were privileged. Willard filed a motion to compel.
After a hearing and briefing, the district court granted the
motion to compel and ordered the State to produce the
documents. The State applied for an interlocutory appeal and
for a stay of the district court ruling, which we granted.
For the reasons expressed below, we reverse the district
court ruling and conclude the PSN and related documents are
privileged under the morbidity and mortality statute and are
not subject to discovery.
Background Facts and Proceedings.
Willard was involved in a head-on motor vehicle accident in
the late hours of November 3, 2011. Willard sustained
significant injuries from the collision and was initially
treated at the Genesis Medical Center East in Davenport,
Iowa. While at Genesis, Willard underwent imaging studies and
x-rays. One of the x-rays covered Willard's left shoulder
and showed no break or dislocation.
was transferred to the UIHC early in the morning on November
4. UIHC performed more imaging studies and x-rays, and the
follow-up x-ray of Willard's left shoulder again showed
no break or dislocation. While at the UIHC, Willard's
condition deteriorated, which required that he be sedated and
intubated. Because the doctors were concerned that Willard
had sustained internal organ damage as a result of the
accident, he underwent an abdominal CT scan on November 6.
Willard remained sedated and intubated during the CT scan. In
order to perform the CT scan, the imaging technologists were
required to raise Willard's arms above his head.
Willard returned to his floor after the CT scan, staff noted
that he exhibited a lack of motor response in his left arm
and pain with range of motion. They requested an orthopedic
team consult, and the orthopedic surgeon ordered more x-rays
of Willard's left shoulder. At this point, orthopedic
surgeon Dr. Buckwalter diagnosed Willard with an
anterior-inferior dislocation in the left shoulder, and he
relocated it. Willard's progress notes stated that
orthopedics was consulted "regarding left
anterior-inferior shoulder dislocation following a trip to CT
for an abdominal exam." The next day, Willard's
progress notes again stated that orthopedics had been
consulted "after he sustained a left shoulder
dislocation in an anterior inferior direction while obtaining
a CT scan."
filed a petition at law and jury demand on November 24, 2014,
pursuant to the Iowa State Tort Claims Act. The underlying basis for Willard's
claim is that he was negligently handled while sedated,
causing him to sustain injuries to his left shoulder, arm,
and foot. He argues the State owed him a duty to exercise
reasonable care in transporting him while sedated and the
employees of the hospital breached that duty. He asserts that
the x-rays from Genesis and the x-rays taken at UIHC on
November 4 do not show a left shoulder dislocation. However,
the x-ray taken after the abdominal CT scan shows a left
shoulder dislocation, which indicates his shoulder was
dislocated during the CT scan procedure.
the course of discovery, Willard submitted the following
INTERROGATORY No. 6: State whether you, your
agents or attorneys have obtained any statement, either oral
or written, from any person having knowledge of facts
relating to the subject matter of this action, and if so,
(a) the name and address of each person giving such
(b) whether each such statement is written or recorded and
signed or unsigned;
(c) the date, time, and place each such statement was taken;
(d) the name and present address of the person taking each
(e) the name and address of each person having custody and
control of such statement;
(f) the substance of each such statement.
INTERROGATORY No. 16: Was any document
withheld under any alleged privilege? If the answer was yes,
identify each document for which a privilege is claimed,
together with the following information: date, sender,
recipients, recipients of copies, subject matter of the
document, and the basis upon which said privilege is claimed.
also made an initial request for documents seeking copies of
any reports or memoranda relating to him, the incident
referenced in his petition, or the injuries or damages
included in his petition. In a supplemental request for
documents, Willard requested "[a]ny PSN, unusual
incident report or other incident report prepared by any
agent or employee of Defendant in November 2011 that relates
to or refers to Plaintiff."
filed the supplemental request for documents after deposing
UIHC senior imaging technologist Cyndie Beaumont, who had
assisted with Willard's CT scan. During her deposition,
Beaumont stated that she did not recall the CT scan itself,
but does remember Willard because she learned that an
incident report had been filed about the scan the next day.
The incident report that was filed was a Patient Safety Net
is an electronic form that allows UIHC employees to enter
information about events that raise a safety concern for
patients. The UIHC encourages staff to enter a PSN for any
safety concern, and thousands of PSNs are submitted every
year. UIHC employees are informed that PSNs are confidential
and protected. A submitted PSN may be used for a number of
purposes, including but not limited to morbidity and
mortality studies, a source for UIHC staff to review events,