A: You get a call from a nurse at the hospital late at night.
“Your mom fell from her bed. She hit her head. She’s unconscious now and on life support.”
You know that the nurses are required to write up an incident report about this irregular incident. You hire a lawyer to bring a case against the hospital for carelessness and negligence.
You tell your lawyer that the nurses must have written an incident report to document the incident. They must have had a meeting with their supervisors and superiors. You want to get a copy of that document.
The short answer is no, you can’t.
That document is likely protected by the Public Health Law that protects doctors, hospitals and nurses when an unusual incident occurs. It is designed to allow health care providers to ‘speak freely’ about what happened in order to improve quality control at the hospital. It is theoretically designed to improve patient care and safety.
Lawyers often want this document to prove the events that occurred. The patient and their families often do not have the same type of access to hospital staff as the hospital itself does. Unfortunately for injured victims in NY this incident report is usually privileged and not discoverable. There are some exceptions that might make it available.
If the victim’s attorney believes that the document should be released and turned over, he can ask the court to review the incident report in camera and make a decision after reviewing the document about whether it needs to be released. An in-camera review is a private review done by the judge to determine if the report should be released. Each lawyer has an opportunity to provide to the judge the required case law that argues either for or against the release.
Even if you cannot get the report, you may be able to get the hospital staff who were there and ask them detailed questions at a deposition (a question and answer session under oath).