The long-awaited decision in Harrison v Munson Medical Center was issued yesterday.  To briefly recap, the patient sued Munson, among others, after she was burned with a Bovie device during surgery.  Munson presented a defense based on habit, routine, and practice evidence (i.e., what health care practitioners usually do), claiming no one involved had any memory of what happened.  The defense then crafted a theory that the  Bovie had been properly holstered, but somehow became unholstered and made its way to the patient’s arm.

In the midst of trial, though, the plaintiff learned of an incident report written by a nurse shortly after the surgery.  The trial court reviewed the report in camera (i.e., without showing it to the plaintiff) to determine whether the peer review privilege applied, thus barring disclosure.  It held the privilege applied.  However, the trial court was not pleased with the defense after it reviewed the report.  It determined that the defense presented was “grossly inconsistent” with the facts contained in the incident report.  The trial court focused on these statements in the report: “During procedure, bovie was laid on drape, in a fold.  Bovie holder was on field for this case, however bovie was not placed in it.”  Munson and its attorney were both sanctioned.  The trial court also thought the jury had a right to know those facts.

The case made its way through the Court of Appeals, which initially upheld the trial court’s imposition of sanctions.  The Supreme Court stayed the matter while it decided a case in which one of our attorneys was involved, Krusac v Covenant Medical Center.  Krusac held that facts contained within a peer review privileged document cannot be disclosed.  Based on the wording of the peer review statutes, that decision was correct.  

Harrison was remanded for reconsideration in light of Krusac.  The Trial Court reimposed the sanctions, again finding that the defense presented was inconsistent with the facts contained in the incident report (and actually, that the defense was “diametrically opposed” to facts in the incident report), and that its decision to impose sanctions had nothing to do with the lack of disclosure of the facts to the plaintiff.  It was based solely on ethics violations.

This time, a different panel of the Court of Appeals reversed.  It found that the statements in the incident report were vague, and therefore, the defense could not be found to be inconsistent with known facts.  Again – probably the right results under the facts of this case.

When the Harrison debacle began in 2011 (the appellate process is not fast), it raised a number of ethical questions and concerns about how to handle incident reports.  Here are the big three questions we think remain:

1.  Under what circumstances can a trial court review peer review privileged documents to determine whether an inconsistent defense is being presented?

We don’t think any attorney or sophisticated party can reasonably argue that sanctions are inappropriate when an inconsistent defense is actually presented.  The question, though, is how can a plaintiff discover the inconsistent defense when it cannot examine the incident report.  Can the trial court ever review the incident report in camera?  Does the plaintiff’s attorney need something more than a gut feeling that the incident report contains inconsistent facts?  We have a couple of ideas for written discovery that should help to determine whether there is a factual basis to support a concern that the incident report contains inconsistent defenses.  We’ll let you know how they work out!

2.  What is the defendant’s obligation to review incident reports to refresh witness recollection?

We think this one should be an easy answer.  Nothing in the statute prevents an individual from reviewing information that the individual submitted to peer review.  Defendants (and their attorneys) should not be able to rely on “habit, routine, and practice” when there is a document they can use to refresh witness recollection.  Remember, “[l]itigation is the pursuit of practical ends, not a game of chess.”  Indianapolis v Chase Nat’l Bank, 314 U.S. 63 (1941).  Having witnesses refresh their recollections before using their knowledge (or lack of knowledge) to form a defense seems to be a very basic element of the “reasonable inquiry” required by MCR 2.114(D) and similar rules.

3.   Why did this case go to trial in the first place?

Sometimes, litigants get lost in the legal weeds.  But take a step back.  A patient went in for surgery.  Her arm was burned by a surgical device  – that never should have happened.

Here is the link to the full opinion: Harrison v Munson

For more information about Hoffer & Sheremet, and our Michigan medical malpractice and appeals practice, visit www.hoffersheremet.com.