In the Courts: Incident Logs, but Not E-mails or Consultant Report, Protected from Discovery

​In a case of first impression in the state, the Court of Appeals of Arizona has held that e-mails sent among a nursing home's staff and a consultant report created for it were not protected from discovery under the federal Nursing Home Reform Act but that incident tracking logs generated by the quality assurance (QA) committee were privileged.

A 75-year-old resident fell at the facility; he died several weeks later. His widow, who was also his estate's personal representative, sued for wrongful death and violation of the state's Adult Protective Services Act. She moved to compel production of one e-mail, an e-mail string, a consultant report, and logs of incidents that occurred at the nursing home during the month of the resident's fall, which were accompanied by bar graphs illustrating incidents by type, day of the week, shift, location, and unit and a pie chart showing the time and unit of each fall. The defendants contended that the documents were privileged from disclosure because they were generated...