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As noted in the previous chapter, modern discovery rules do not allow unlimited access to documents. The work that an attorney produces when representing a client is protected from discovery, as is the information communicated to the attorney by the client. This privilege is limited to work done while the attorney is acting in the role of counsel. This means that the hospital cannot hire an attorney to be an administrator and then claim that everything the attorney touches will be protected from discovery. Only the work that is related to, or in anticipation of, litigation will be protected, and then only to the extent that the administrator is functioning as an attorney. In the bed rail example, it would be difficult to prevent the discovery of the incident could result in litigation and should be investigated. The results of the investigation can be confidential if it is carried out properly. However, this privilege applies only to the actual reports that the investigator or attorney develops; it cannot shelter any previously discovered information.

The following example of an investigation of an incorrect medication incident will help clarify this distinction. The quality control manager is given an incident report contains the patient's name, the nurse who gave the medication, the intended medication and its dosage, the medication actually given and its dosage, and the patient's reaction. The intended medication was a mild sleeping pill; the medication actually given was a powerful diuretic. The error was not noted at once but was detected only after the patient began to diurease at a very high rate and became unresponsive. The attending physician was notified, and the risk manager was immediately sent the incident report. The administrator realizes the possible severity of the mistake and decides that the incident must be investigated at once. It is important to get the facts while everyone's memory is fresh. Also, in an incident whose outcome is still unsettled, it is necessary to decide the hospital's position in dealing with the incident. The hospital may be able to mitigate the damages and avoid alienating the patient. If possible, the administrator would also like to protect the information developed by the investigation from being discovered by the plaintiff in a lawsuit.

For the results of the investigation to be protected from discovery, it must be clear that the investigation was conducted in anticipation of litigation and not as a part of normal record keeping. A good way to establish this distinction is to open a potential claims file on each incident that is investigated. This file should be sent to the hospital counsel when the investigation has been completed, or sooner if difficulties arise in completing the investigation. The administrator should also consult the attorney about whether a claim should be investigated. Standard investigation forms should be prepared to ensure that all pertinent information is collected. The use of such forms will provide evidence that the intent of the investigation was to prepare for a potential claim. If the incident results in serious injury, the potential claim file will be a valuable asset when the counsel becomes involved.

The actual investigation involves collecting all of the standard information required by the potential claims forms and getting statements from the parties to the incident. In our example, the investigation may show that the patient noticed that the medication "did not look right" and questioned the nurse about it, but the nurse ignored the complaint and gave the patient the medicine. This information should be put in the report of the investigation. This report is not discoverable, and the investigator cannot be personally asked about the contents of the report. The plaintiff can ask the nurse who gave the medication what was said. The nurse must answer the question truthfully, relating that the patient said that the medicine "did not look right."

It may not seem to matter whether the plaintiff gets the investigation report if the plaintiff is free to investigate the incident by directly questioning the nurses. While it is true that a well-prepared attorney who investigates the case carefully may find out the same information that the investigator finds, few attorneys are willing to devote the necessary time to carry out this type of investigation. It is also to the benefit of the investigator to collect information in a nondiscoverable form, because it encourages the cooperation of other staff members, especially physicians. As noted the chapter on hospital liability, the interests of the attending physician and the hospital are often different. The physician will be reluctant to help with an investigation if it could be discovered by the plaintiff's attorney, who may also be suing the physician.

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