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Tuesday, October 15, 2019

St. Elizabeth’s can keep surgical investigation confidential, Rudolf rules


By Record News | Jun 27, 2019

Rudolf and Cates

BELLEVILLE – St. Elizabeth’s Hospital can keep its investigation of a surgical operation confidential, Circuit Judge Heinz Rudolf ruled on June 19. 

Swansea lawyer David Cates sought documents about the investigation for a suit claiming the hospital damaged the spine of A.J. Mitchell. 

Rudolf denied a motion to compel production of the information, and later denied a similar motion against the hospital’s neurology group.  

He wrote that under the Medical Studies Act, information from an investigation should be used only for research or for evaluation and improvement of care. The purpose of the Act, he added, is to ensure that members of the medical profession will effectively engage in evaluation of their peers. 

The Act provides privilege for all information used in the course of quality control or study for the purpose of improving patient care. 

Cates filed a complaint last year for Mitchell and spouse Lillie Mitchell. 

They seek damages from St. Elizabeth’s, its neurology group, surgeon Serge Rasskazoff, and device makers Zimmer Biomet and LDR Spine. 

The complaint alleges that the hospital admitted Mitchell on July 25, 2016, for surgery on that date and second surgery four days later. 

It alleges that he tolerated all procedures of the first surgery and had normal levels of motor activities and a strong grip. A second phase involved an anterior cervical discectomy and fusion, and a lateral mass instrumentation. The fusion also involved a cervical cage. 

Cates wrote that Rasskazoff broke the cage, “and pieces of the device dislodged posteriorly into the plaintiff’s spinal canal.” 

As a proximate result, Mitchell suffered an irreversible spinal cord injury leading to quadriparesis - weakness in all four limbs, according to the suit. 

Rudolf’s orders show defendants spent days investigating the event. 

Cates asked for information from the investigation last year, and in response defendants submitted a log asserting privilege for some documents. 

They amended the log earlier this year, and Cates moved to compel them to produce documents it described. 

Cates argued that St. Elizabeth’s should produce incident reports of July 31 and Aug. 4, 2016, a detail report from software provider Verge, a root cause analysis, a quality assurance review, and Rasskazoff’s credentialing file. 

He argued that the neurology group should produce notes from a conversation about Rasskazoff among doctors Hughes and Polous, corporate counsel Amy Marquart, risk manager Robert Whitman, and Janet Doherty. 

He also argued that the group should produce notes of a meeting among Rasskazoff, doctors Bland and Farmer, Paige Toth, and Penny McCarty; that the group should produce a letter Rasskazoff distributed to an investigation committee and the group should produce an anonymous incident report of Aug. 4. 

Rudolf heard argument this June 4, and later read the documents in chambers. 

“The purpose of the Medical Studies Act is to encourage candid and voluntary studies and programs to improve hospital conditions and patient care or to reduce the rates of death and disease,” Rudolf held. 

He wrote that the July 31 incident report contained notes of patient safety officer Jamie Wilke and nurse manager Deborah Branson of the surgery department. 

The report included communications among chief medical officer Dolph Haege, chief executive officer Peggy Sebastian, executive director of surgical services Brian Johnson, rehabilitation director Tom Dibadj, and Wilke. 

Rudolf wrote that the Aug. 4 incident report contained notes of Branson and Whitman; that the Verge detail report was a compilation of the incident reports; that Branson, Johnson, anesthesiologist Edward Schuessler, and interim officer Carrie Ellinger conducted the root cause analysis. 

He wrote that they performed it to improve patient care and reduce adverse events in the future. 

He placed Rasskazoff’s credentialing file off limits, writing that physicians might be reluctant to sit on peer review committees without confidentiality. 

He wrote that the file reflects St. Elizabeth’s internal credentialing process. 

In his order covering the neurology group, he granted privilege to 18 pages of notes that five persons took at a meeting with Rasskazoff on Aug. 10. 

He granted privilege to Rasskazoff’s letter to the investigation committee, finding he composed it in furtherance of the investigation. 

He wrote that Rasskazoff provided information for consideration and as additions to statements in his original interview. 

He granted privilege to notes of the meeting corporate counsel Marquart attended, finding she provided legal consultation.


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