Participants in EMS QI should familiarize themselves with the statute, if any, in their state that governs the confidentiality of QI materials. Unless QI materials are made confidential by state statute, they are likely to be (a) subject to subpoena and other forms of pretrial discovery, (b) admissible as evidence at trial (assuming the materials are relevant and otherwise satisfy generally applicable requirements for the admission of evidence), and (c) subject to public disclosure under the state’s freedom of information statute if they come into the possession of a state governmental agency.
Who conducts protected QI?
Emergency medical services QI may be conducted by hospitals individually, by EMS agencies individually, or by a centralized body responsible for the quality of care throughout an emergency medical system or on a regional or state-wide basis. The availability of confidentiality may depend on who conducts EMS QI.
A majority of states have enacted statutes that grant hospital peer review records at least limited confidentiality. When EMS QI is conducted by a hospital, participants should confirm that the emergency medical care they review is within the scope of the statutory definition of “hospital” QI.
A number of states have adopted statutes that expressly protect the confidentiality of records of centralized review of EMS that is conducted by a private or governmental body that is responsible for monitoring the care provided by multiple prehospital providers. Such statutes typically also protect the records of QI activities that are conducted by providers themselves [3]. For example, the Florida legislature has expressly provided that, “The investigations, proceedings and records of a committee providing quality assurance” regarding EMS “shall not be subject to discovery or introduction into evidence in any civil action or disciplinary proceeding” conducted by the state or by an agency that employs emergency medical personnel [4]. The same Florida statute provides that persons who attend a meeting of an emergency medical review committee are not permitted or required to testify in any such civil or disciplinary proceeding regarding information relating to the committee, except for information from external sources that was presented to the committee. A number of states have established state-wide or state-appointed EMS QI bodies, and have enacted statutes that grant confidentiality to the records of these statutorily mandated QI bodies [5].
A significant number of states protect the confidentiality of QI conducted by a single EMS provider with respect to its own services [6]. Often it is not clear whether these confidentiality statutes, which expressly apply to an individual provider’s activity, also cover QI that is conducted on a centralized basis, such as where a committee of representatives of the state or local EMS authority performs QI. In states that protect only the records of individual providers, QI providers might attempt to bring themselves within the protection of the statute by having each participating provider sign a simple form that delegates the provider’s QI functions to the centralized EMS QI committee. While this approach is largely untested, there is strong appeal to the theory that if QI is confidential when conducted independently by individual providers, it should also be equally protected when performed (perhaps more effectively and efficiently) on a centralized basis by a group of such providers.
Research revealed only one reported court decision that addresses the confidentiality of EMS peer review materials. In McCoy v. Hatmaker, 135 Md App 693, 763 A2d 1233 (2000), the Maryland Court of Special Appeals upheld a lower court decision protecting the confidentiality of a fire department’s records. The fire department employed an EMT who allegedly had violated state-wide EMS protocols when providing emergency care to a motorist who died. The motorist’s estate sued the EMT and his municipal employer for wrongful death. In the course of that litigation, the plaintiff subpoenaed the report of an investigation of the incident/death that was conducted by the EMT’s supervisor. The fire department refused to release the record to the plaintiff on the grounds it was confidential “medical review” and protected against discovery by Maryland’s medical review committee statute. The Maryland statute protects the confidentiality of the proceedings and records of committees that review the quality or necessity of health care or the competence or performance of providers; the statute is generic and does not apply expressly to EMS. The Court of Special Appeals agreed with the fire department and observed (135 Md App at 726, 763 A2d at 1251):
