Discovery and personnel files - Ask the Coach

Physician Executive, Sept-Oct, 2003 by Howard Kirz

After several of us completed your course on Managing Physician Performance, we developed an annual performance review for our group. As president, I conduct these reviews myself and my notes become part of the physician's employment file. Patient-specific data is not a part of this process in order to protect it from discovery in the case of a patient lawsuit.

One of the questions in our internal survey asks whether the office manager can identify any barriers to efficiency that the physician should be made aware of. One manager remarked that it would be helpful if this particular physician could answer his phone messages in a timelier manner so the front office staff could manage charts more efficiently. The manager also noted that there were often 30 or more charts with messages to be addressed or lab results to be called.

My question is, because these reviews are part of the physician's employment file and not a peer-review activity, could they be used in discover, in a lawsuit? With delayed diagnosis becoming a more common reason for lawsuits is there a way to better protect such information?

Thanks for any advice you might have.

An Ex Student

Hi Ex,

Nice to hear from you. Glad to learn you're using some of the tools from our course too.

Yes, generally speaking information in a personnel file can be discovered in legal actions where that information is deemed relevant. For that reason, it's generally a good idea not to place information about an individual patient's care in such files.

On the other hand, maintaining high overall performance in areas like documentation, returning phone calls and following up on lab reports is essential to your whole organization's well-being and to the perception of quality in the eyes of your customers.

Your manager's right. The risk of not dealing with these recurring issues is much greater to your organization than the slightly enhanced liability risk of having such survey data discovered in a malpractice case.

Prevention is definitely the best strategy. My advice is to work with this physician to fix the chronic problem itself, if you don't already have them you'll likely need well-defined standards, a way to monitor compliance and some clear consequences. Dealt with in this way, the slightly enhanced liability risk you're concerned about will diminish considerably.