Amy Dowd

HHP 625 Module 8 Writing Assignment

1. Petra was permanently and severely disabled following spine surgery conducted by Neil, a
neurosurgeon. Even though Neil wasn't employed by Mercy Medical Center where the surgery
was conducted, Petra sued the hospital on the theory that it inappropriately granted staff
privileges to Neil and failed to properly determine his qualifications to perform surgery. During
the course of the litigation, Petra's attorney asked for several different types of information.
Address whether each type of requested information is privileged, or whether it should be
produced, and provide justification for your decision. You can assume all of the general rules
identified in your text apply to this situation.

Testimony to a peer review committee by Rick, a physician in residency who assisted with
the surgery.

This testimony should not be produced. Rick is a witness contributing to the hospital's own
investigation, so that falls into the category of information that is privileged within peer review
documents. Testimony and committee member discussion during peer review are statutorially
shielded from subpoena in most instances. According to the textbook, exceptions can happen when
the benefits to public good (e.g. civil rights) gained by denying privilege are overwhelming, but an
individual lawsuit like this doesn't meet that metric.

Records of an investigation ordered by the peer review committee into how many spine
surgeries in the last two years at the hospital have resulted in lawsuits, and how many of those
were conducted by Neil.

This falls into the category of information that is not considered privileged; i.e. discoverable facts.
Anything that's not part of the candid self-critical study process, or decision-making conversations
about the committee’s actions, is not protected by privilege. What's being asked for is just factual
information, so it should be produced.

Copies of newspaper articles from another state regarding a lawsuit brought against Neil
previously for a spine surgery. These articles were contained in the file kept by Mercy Medical
regarding the grant of hospital privileges to Neil.

Newspaper articles are in the public domain, so they are not covered by privilege. That alone is
enough to prevent them being produced at Petra's attorney's request, but in this case they are also
information accrued prior to the surgeon's application for staff privileges. Courts have held that the
code of civil procedure does not protect this type of information regardless of where it resides (i.e.
in a file with other information that is privileged.)

Records of the credentialing committee's discussions regarding granting hospital privileges

to Neil.

The committee members' discussion about whether to grant staff privileges to Neil falls into the
deliberative/evaluative category of information, so it would be considered privileged. Just as with
the peer review information categories above, everything that is not just a straight fact is privileged.
Protecting this category of information is important because in order for the deliberative process
to be best served, credentialing and peer review committees need to be free to be candid without
having to worry about possible liability, etc that could arise from their honest expression of their
thoughts.

A list of privileges that were denied to Neil at the same time certain other privileges were
granted to him, including the privilege of using Mercy's operating room to conduct spine
surgeries.

Courts have ruled that this type of discovery request must be granted. Although the discussion
of how they came to the decision is protected, the decision itself is not. So the requested list of
privileges granted and denied would be considered discoverable.

2. Identify major advantages and disadvantages of HIPAA.

One major advantage of HIPAA is the protection of healthcare consumers' privacy. The information
contained in medical files is of a highly personal nature, and without a law mandating specific
required steps to protect our information, it could be exposed to third parties. Such unauthorized
disclosures can have very serious negative effects, as noted in the Act itself, including potentially
endangering a person's ability to gain gain employment, insurance, etc. Because HIPAA is a federal
law, consumers are assured that whatever provider they go to, the provider will have the same
privacy policies and information security procedures in place, regardless of what state they live in.
This uniformity also extends to the many forms that healthcare consumers encounter. Another
advantage of HIPAA is that it empowered patients with a codified right they did not have prior to
the legislation, the right to access their records. This might not seem significant, but prior to HIPAA
many providers either refused to give a client's records directly to them (insisting that they will only
release the record to another medical provider), or made it difficult, e.g. by charging more than
nominal fees.
The other side of the double-edged sword of the helpful policies and procedures established by
HIPAA is that they required an enormous amount of time and money to implement. Compliance can
be so complicated that some healthcare practices actually have to hire outside professionals, which
can be detrimental to solo or small-scale providers. HIPAA also radically complicates relationships
between providers and other providers, insurance companies, and other parties they have to transact
with. Because the Act mandates that covered entities only share information with entities who
protect PHI to HIPAA standards, business associate agreements have to be in place before any
personally-identifying consumer information is exchanged. While the promotion of EHR was
advantageous insofar as it can streamline collaboration among providers, and potentially make the
overall provision of services more efficient, it also introduces a particularly significant challenge,
because tech is inherently not a stable paradigm: Coding conventions, server designs, and
everything else IT-related change constantly. Each time, these changes are likely to have some
implication for the integrity of electronic data, so trying to adhere to HIPAA vis-a-vis HITECH
becomes an endless, ever-evolving task.