Supporting Health Care Worker Victims of Patient Safety Events: Should These Communications Be Covered by Legal Privilege?

J Law Med Ethics. 2013 Dec;41(4):852-8. doi: 10.1111/jlme.12095.

Supporting Second Victims of Patient Safety Events: Shouldn't These Communications Be Covered by Legal Privilege?

de Wit ME1, Marks CM, Natterman JP, Wu AW.

Author information

• 1Health lawyer in the Toronto office of Borden Ladner Gervais.

Abstract

Adverse events that harm patients can also have a harmful impact on health care workers. A few health care organizations have begun to provide psychological support to these Second Victims, but there is uncertainty over whether these discussions are admissible as evidence in malpractice litigation or disciplinary proceedings. We examined the laws governing the admissibility of these communications in 5 states, and address how the laws might affect participation in programs designed to support health care workers involved in adverse events. We found that privilege is uneven from state to- state, and also unclear. Ambiguity alone could have a chilling effect on Second Victim programs. We propose legislation to protect volunteer and health care worker communications provided by peer counselors, or failing this, updating of statutory provisions to explicitly include these communications within the ambit of existing protections. Enhancing protections could help to foster an environment of healing for both patients and caregivers.