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For Patients’ Sake! Can We Get Some Clarity? Defending the Privilege and Confidentiality of Patient Safety Work Product
No full textIn 2000, the Institute of Medicine published To Err is Human: Building a Safe Health System, a report revealing the shocking rate of medical errors plaguing the United States healthcare system. Faced with the horrifying consequences of these medical mishaps, Congress sprang into action. It enacted the Patient Safety and Quality Improvement Act of 2005 (PSQIA), which authorized the creation of Patient Safety Organizations (PSOs). Intended to increase transparency and communication amongst healthcare providers, PSOs collect provider medical error data—termed Patient Safety Work Product (PSWP)—and suggest areas of improvement.
The Act grants privilege and confidentiality protections to any information that fulfills the statutory definition of PSWP. Patient-plaintiffs in state court medical malpractice actions often attempt to circumvent these protections—and compel discovery of provider-defendant information—using provisions of the Act relating to state-mandated reporting laws. These patient-plaintiff arguments have varying efficacy in state courts and have resulted in inconsistent interpretations of the Act across the nation.
This Comment argues that Congress should amend the language of the “dual-purpose” exception, a provision that has catalyzed troubling judicial inconsistency. Such an amendment must be carefully constructed to define the relationship between PSWP and information mandated by state reporting laws. The proposed amendment must also retain the Act’s existing preemptive language. This crucial change will deter state courtconflict and ensure the overarching goal of the PSQIA—improved patient care—is achieved
The Method Is the Message: Movement Law and the Social Change Commons
No full textLegal scholars have long sought to understand the relationship between social movements and the law. A new group of such scholars has argued that to better understand this relationship, and to advance social change that is effective, sustainable, equitable, and just, they must engage in dialogue with such movements to generate ideas that will catalyze that change. For those interested in generating ideas that can spark meaningful and lasting social change, such developments in legal scholarship represent an exciting evolution in the relationship between legal scholarship, legal scholars, and social movements: a relationship that appears to be growing stronger, deeper, more integrated, and more complex. At the same time, a different body of socio-legal scholarship, that which focuses on production of culture, assesses the institutional and normative environment in which such ideas are produced, looking at the financial and other incentives necessary to do so. The co-creation of ideas in the social change space represents, in many ways, the production of cultural phenomena (how to frame a particular injustice, the prefigured imaginings of what justice could look like, and the tactics and strategies necessary to realize that vision of justice). Yet creativity and ideation in this space are different from the typical context in which cultural artifacts are produced; social change requires a different approach; different logics; and a different understanding of how to incentivize, foster, and nurture co-creation. This work identifies the environment necessary for the co-creation of ideas that will advance social change that is just, effective, and durable as what is called in the literature a commons. A commons generally requires a particular set of institutional arrangements in order to flourish. As a commons, those who would operate within it can learn from the lessons of effective common-pool-resource management to understand the institutions that typically lead to positive outcomes in such settings. This is the first Article to identify the social change space as a commons, and then to analyze the functioning of that commons to identify the norms and institutions that foster effective cultural innovation in such settings
