What is “QI Privilege,” and why does it make people injured in hospitals want to tear their hair out?

qualityImagine your lawyer failed to get you a necessary expert, and your case got thrown out of court.  You’re horribly injured, but now you have no way to recover.  This same lawyer had told you your case had a multimillion dollar settlement value.  That lawyer is quickly fired by his law firm — but none of that matters anymore, because you’re out of luck.

In talking to other lawyers, you realize your lawyer’s error was inexcusable, and you sue him for legal malpractice.  But the law firm denies responsibility.  It says your lawyer acted reasonably in not getting the expert.  And it says your case was terrible anyway.  So your new lawyer asks for discovery — all the documents related to the firing and the internal investigation by the law firm that led to the firing.  You know there will be evidence in those files contradicting their new defenses.  Why else would they have disciplined him?

In a legal malpractice case — you get that information no problem, and you win your case.  Same with accounting malpractice.  Malpractice by an engineer.  Or an architect.  A financial planner.

But you’ll never see it in a medical malpractice case in Washington, because of the “QI” (quality improvement) privilege. You can read the statute yourself, but the important part is this: you don’t even get to find out what’s in the hospital’s internal investigation files.

Here’s how it works.  Hospitals are required to “maintain a coordinated quality improvement program” for the “prevention of medical malpractice.”  To do so, they have to set up “quality improvement committees.”  The committee must collect “information concerning the hospital’s experience with negative health care outcomes and incidents injurious to patients[.]”  But the information and documents created during the investigation aren’t even discoverable in civil litigation. As the law says: “Information and documents…collected and maintained by, a quality improvement committee are not subject to … discovery or introduction into evidence in any civil action[.]”  So if the doctor admits to a screw up during the investigation? You don’t get to know. If the doctor admits to believing you would have done well, absent the screw up?  You don’t get to know.  If the nursing staff tells the committee they think the doctor screwed up? You don’t get to know.

In other words, the system they’ve set up for “prevention of medical malpractice” is also designed to prevent you from learning what caused your injury in a way that lets you bring a malpractice claim. But there’s no such system in place for other professionals who have to hold themselves to a professional standard of care.

So why the special treatment for doctors? Isn’t it desirable to “improve quality” that prevents other forms of malpractice?