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Willard v. State

Supreme Court of Iowa

April 7, 2017

DENNIS WILLARD, Appellee,
v.
STATE OF IOWA, Appellant.

         Appeal from the Iowa District Court for Johnson County, Mitchell E. Turner, Judge.

         The State appeals from a district court ruling granting plaintiff's motion to compel discovery. REVERSED AND REMANDED.

          Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor General, and Forrest Guddall (until withdrawal) and Anne Updegraff, Assistant Attorneys General, for appellant.

          Matt J. Reilly of Eells & Tronvold Law Offices, PLC, Cedar Rapids, for appellee.

          Erika Eckley, Des Moines, and T. Randall Wright of Baird Holm LLP, Omaha, Nebraska, for amicus curiae Iowa Hospital Association.

          Paul 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.

          ZAGER, Justice.

         In this 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, [1] 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.

         I. Background Facts and Proceedings.

         Dennis 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.

         Willard 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.

         When 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."

         Willard filed a petition at law and jury demand on November 24, 2014, pursuant to the Iowa State Tort Claims Act.[2] 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.

         During the course of discovery, Willard submitted the following interrogatories:

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, please state:
(a) the name and address of each person giving such statement;
(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 such statement;
(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.

         Willard 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."

         Willard 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 (PSN) form.

         A PSN 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, ...


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