+ LOOK
INSIDE
THE BUSINESS BEHIND THE VERDICT
DOCKET A publication of the Arkansas Trial Lawyers Association
FALL 2026 IN THIS ISSUE
IT’S ALL IN THE DETAILS
DIGGING
DEEPER ON HOT TOPICS
KIDS CHANCE SCHOLARSHIPS INCIDENT REPORTS & PSQIA PRIVILEGES
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Montgomery DECISION
THE WRITER'S BLOCK PAGE
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TABLE of DOCKET CONTENTS
FALL 2026
A publication of the Arkansas Trial Lawyers Association
Publisher Stephanie Malone McLean Editor Katie Clifford
IT’S ALL IN THE DETAILS
DIGGING DEEPER ON HOT TOPICS
Graphic Designer Dave Lewis Advertising Manager Jennifer Irwin Publications Committee (2025-2026) Co-chairs: Taylor Chaney Alan LeVar George Wise Chris Heil Carter Stein Sarah Jewell Geoff Hamby Corey McGaha Jim Lyons Brian Brooks Brett McDaniel Tim Watson Lyndsey Dilks Geoffrey Kearney Whitney Cossio ATLA Docket is published quarterly by the Arkansas Trial Lawyers Association, PO Box 3486, Little Rock, AR 72203. Telephone (501) 376-ATLA. All rights reserved. Statements or expressions of opinions are those of contributors and are not necessarily those of the Arkansas Trial Lawyers Association or the editor of ATLA Docket. The editor of ATLA Docket reserves the right to edit and condense all materials herein. All advertising copy is the sole responsibility of the advertisers.
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PRESIDENT’S COLUMN
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PRESIDENT ELECT’S COLUMN
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UNMASKING BROKER IMMUNITY:
Ryan Scott, Esquire, ATLA President
Justin Zachary, Esquire, ATLA President-Elect
Montgomery v. Caribe Transport By Kara Butler
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THE BUSINESS BEHIND THE VERDICT
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A RIGHT TO EVERY MAN'S EVIDENCE
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By Charlie Feehan, President, Abacus Advisors
Incident Reports & PSQIA Privileges By George Wise
THE WRITER'S BLOCK
By Brian Brooks
CLOSING THE DISTANCE:
ATLA Helps Kids’ Chance of Arkansas Celebrate 25 Years
FALL 2026 | ATLA DOCKET
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PRESIDENT’S COLUMN
WHAT TIME IS IT? IT'S GAMETIME.
By Ryan Scott, Esquire, ATLA President
ATLA Mission Statement: To promote a fair and effective justice system—and to protect the Constitutional rights of all Arkansans. ATLA Vision Statement: To accomplish our mission for justice through education, networking, legislative advocacy, and trial practice.
This is the last edition of the Docket before the Arkansas General Assembly gavels in its 96th general session. This is the time to re-commit ourselves to ATLA’s mission. Due to the focused, deliberate, and ceaseless support from our remarkable members and dedicated staff, ATLA is a position to accomplish our mission yet again – to protect the constitutional rights of all Arkansans. Starting January 11, 2027, the 96 th general session will be convened. ATLA’s mission charges all of us to support our elected representatives in the protection of our unalienable constitutional rights. Regardless of whether you voted for the representative, regardless of whether that representative holds some positions opposed to yours, regardless of whether they represent you… when it comes to protecting our constitutional rights, our mission charges us to help our elected representatives, 2
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all of them, whenever we can. Let us resolve to do so in this session. ATLA members and staff across our state have worked diligently to establish relationships with our legislators. The networking facet of our vision continues. As any coach will tell you, the hardest work toward success is done long before the contest begins. Now, we must execute. Every candidate ATLA has met with expressed the need for expert advice in areas in which they do not specialize. That is where ATLA’s mission and vision merge. As this session progresses, please be open to proposing questions, answering questions, and educating our representatives. If it is not a subject in which you feel confident, please contact the ATLA home office. One of the many attributes of our organization is the breadth and depth of knowledge when it comes to protecting the 7th amendment and constitutional rights of our fellow Arkansans. Clear, consistent, and open communication, combined with honest advisement, equal a win for Arkansans’ constitutional rights.
n a y R
Let’s dig deep for the constitution.
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PRESIDENT-ELECT’S COLUMN
Put Justice PAC in the Starting Lineup Last season, I finished last in my fantasy football league. The punishment was letting the rest of the league name my team this year. I will spare the ATLA membership the name they picked, but trust me: it has been a long offseason. That is the thing about fantasy football. You can study every ranking, make a great pick in the first round, and still discover that winning takes a full roster. You need people who show up every week. You need a bench. And you cannot wait until Sunday morning to realize half your lineup is empty. Our work to protect Arkansas families has its own version of a lineup. We need talented advocates in court, members willing to speak up, relationships with lawmakers, and candidates who understand why an open courthouse matters. Justice PAC helps us put part of that team on the field. It gives trial lawyers a way to support candidates and build those relationships before the important votes arrive. The people who want to limit accountability do not wait until a bill is filed to start preparing. They invest early, organize, and keep showing up. We know what that kind of preparation looks like because we do it in our cases. We would never walk into trial with only an opening statement and hope the rest works itself out. Our advocacy in the legislature deserves the same attention. I also know how easy it is to assume somebody else has this covered. In fantasy football, that is how you end up starting 4
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By Justin Zachary, Esquire, ATLA President-Elect ATLA Justice PAC Chair
a player who was ruled out on Friday. In our profession, it means leaving the work of protecting our clients’ rights to a handful of colleagues who are already giving their time and money. Every member has a part to play, and a contribution to Justice PAC is one concrete way to play it. Think of the family whose only chance to learn what happened is through discovery, or the injured Arkansan who needs a jury to hear the whole story. Our work helps keep the civil justice system available when someone powerful refuses to take responsibility. So, as you check your fantasy lineup this fall, take a minute to check another one. If you have already given to Justice PAC, thank you. Consider giving again and ask a colleague to join you. If you have not given, now is a good time to make your first contribution. The amount is your choice; the important thing is that more of us take the field. I cannot promise my fantasy team will redeem itself this season. But I do know what happens when Arkansas trial lawyers prepare together, invest in the work, and refuse to leave the future of our clients to chance. Let’s put Justice PAC in the starting lineup.
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By Kara Butler
History of Freight Broker Activity and Federal Regulation in the United States
T
o understand the monumental importance of the U.S. Supreme Court’s decision in Montgomery v. Caribe Transport II, LLC, 1 plaintiff’s attorneys must first understand how freight brokers evolved from tightly constrained middlemen into modern logistics powerhouses and how defense counsel attempted to weaponize federal deregulation statutes to shield brokers from common law accountability.2
Motor Carrier Act of 1935.3 Under Part II of the Interstate Commerce Act, Congress placed interstate motor carriers and intermediaries under the strict oversight of the Interstate Commerce Commission (ICC). Brokers were required to obtain operating authority from the ICC, establish fitness, and post financial security.4 Then Congress
Federal oversight of interstate commercial trucking began with the
3 Id.
1 Montgomery v. Caribe Transp. II, LLC, 608 U.S. 219, 146 S. Ct. 1199, 224 L. Ed. 2d 727 (2026). 2 Id.
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4 FMCSA’s Jurisdiction Over Interstate Property Brokers and the Leasing of Commercial Motor Vehicles: Statement of Suzanne M. Te Beau Chief Counsel Federal Motor Carrier Safety Administration before the House Committee of Transportation and Infrastructure Subcommittee on Highways and Transit; May 6, 2008.
enacted the Motor Carrier Act of 1980.5 This statute dramatically eased market entry requirements.6 Although federal economic barriers were reduced, state economic regulations continued to dictate interstate commerce. To prevent a patchwork of state economic controls, Congress enacted the Federal Aviation Administration Authorization Act of 1994 (FAAAA).7 In 49 U.S.C. § 14501(c) (1), the FAAAA expressly preempted any state law, regulation, or provision “related to a price, route, or service of any motor carrier... with respect to 5 Montgomery supra. 6 Id. 7 Id.
MONTGOMERY DECISION the transportation of property”8 In 1995, Congress dissolved the ICC,9 transferred remaining oversight duties to the U.S. Department of Transportation, and ultimately the FMCSA, and expanded § 14501(c) (1) preemption to explicitly cover freight brokers.10 However, Congress inserted an explicit statutory carveout, the Safety Exception in 49 U.S.C. § 14501(c)(2) (A),11guaranteeing that economic preemption “shall not restrict the safety regulatory authority of a State with respect to motor vehicles”.12 In the decades following economic deregulation, the freight brokerage industry experienced massive growth. Today, approximately 28,000 active brokers arrange shipments for roughly one third of all freight transported in the United States across more than 780,000 motor carriers.13 Federal regulations require brokers to select a carrier that holds active federal registration, but the FMCSA does not impose federal safety standards on broker carrier selection practices.14 As a result, federal law created a potential safety vacuum allowing brokers to maximize profit margins by selecting cheap, unsafe, carriers with poor safety records without facing direct penalties.15 When catastrophic collisions occurred, brokers routinely invoked FAAAA preemption under
§ 14501(c)(1), asserting total immunity from state law negligent hiring claims. The Montgomery decision kills this argument for the brokers.16 Dismantling the Defense Strategy In Montgomery, the United States Supreme Court unanimously dismantled the defense strategy that freight brokers used for years to claim total immunity from state negligence suits.17 Under 49 U.S.C. § 14501(c)(1), the FAAAA broadly preempts state laws, regulations, or common law provisions “related to a price, route, or service of any motor carrier... or broker... with respect to the transportation of property”.18 Brokers routinely argued that selecting a motor carrier is a core broker service, asserting that state negligence suits directly interfere with that service and are thus preempted.19 However, Congress included an explicit carveout in 49 U.S.C. § 14501(c)(2)(A), the Safety Exception, which provides that general economic preemption “shall not restrict the safety regulatory authority of a State with respect to motor vehicles”.20 Writing for the Court, Justice Barrett connected broker carrier selection directly to state motor vehicle safety authority through the following straightforward analysis.21 All parties agreed that state common law duties and standards of care are a fundamental part of a State’s historic police power to regulate safety.22 Justice Barrett states that because the FAAAA does not define “with respect to,” the Court gives the phrase its ordinary dictionary meaning of concerning or regarding.23 Further, the FAAAA defines a motor vehicle as a vehicle, tractor, or trailer used on a highway. Combining these terms, a claim is with respect to motor vehicles if it concerns the vehicles used in transportation.24 Accordingly, the Court ruled, when a freight broker negligently hires an unsafe motor carrier, requiring the broker to exercise ordinary care directly concerns motor vehicles, specifically, the commercial trucks placed onto public highways to move the goods. Therefore, negligent hiring claims fall squarely
8 Id.
16 Id.
9 Id.
17 Id.
10 Id.
18 Id.
11 Federal authority over intrastate transportation, 49 USCA § 14501(c)(2) (A).
19 Id.
12 Montgomery supra. 13 Id. 14 Id. 15 Id.
20 Preemptive Effect of Federal Aviation Administration Authorization Act, 49 U.S.C.A. §§ 14501(c), 41713(b)(4). 21 Montgomery supra. 22 Id. 23 Id. 24 Id. FALL 2026 | ATLA DOCKET
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MONTGOMERY DECISION within the Safety Exception and survive preemption.25 While the U.S. Supreme Court’s unanimous decision in Montgomery eliminates the defense of federal FAAAA preemption, it does not automatically establish broker liability. Montgomery simply holds that state common law claims against brokers are not barred by federal law. To recover damages in Arkansas, a plaintiff must still prove a valid cause of action under Arkansas state tort law. In Arkansas, the controlling appellate precedent governing broker liability in freight and timber hauling operations is Russell v. Northeast Texas Land and Timber, 2009 Ark. App. 828, 372 S.W.3d 816 (2009). Russell establishes the legal threshold that an Arkansas plaintiff must overcome to survive summary judgment on both direct and vicarious liability theories against a freight or timber broker.26 Under Russell, to establish a broker’s direct liability for negligent hiring, entrustment, or supervision, an Arkansas plaintiff must prove that the broker knew, or in the exercise of ordinary care should have known, that the contractor or driver possessed a character for negligence, recklessness, or incompetence.27 Identifying Brokers and Determining Liability in Arkansas When a plaintiff files suit following a motor vehicle collision, identifying whether a freight broker was involved requires examining the underlying operational and contractual paper trail. Unlike motor carriers, freight brokers generally do not own or lease commercial trucks, nor do they directly employ drivers. Under federal law, a broker is defined as an entity that sells, offers for sale, negotiates for, or holds itself out as arranging motor carrier
25 Id.
transportation for compensation.28 A broker is typically identified during early investigation or formal discovery through several key indicators. These include shipping documentation such as bills of lading, freight waybills, manifests, net load summaries, and rate or load confirmations that frequently list the broker as the party coordinating or tendering the shipment. Another route to pursue is the broker to carrier agreements. These are written contracts between the broker and the motor carrier setting forth the terms under which the broker arranged the load and required specific insurance or performance standards. Also, check the federal registration status on the FMCSA SAFER system, Carrier411 reports, or BOC 3 process agent filings. These may confirm whether an entity holds property broker authority under 49 U.S.C. § 13904 rather than, or in addition to, motor carrier authority. Under Arkansas negligence principles, a freight broker can be held directly or vicariously liable for a highway collision based on their actions or omissions. One such action is hiring a motor carrier that the broker knew, or in the exercise of reasonable care should have known, was incompetent or unsafe. Pointing out that a broker failed to collect an updated insurance certificate or overlooked a minor paperwork requirement will not satisfy the Russell standard for negligent hiring. Plaintiffs must develop evidence of known safety incompetence.29 This includes selecting carriers with conditional FMCSA safety ratings, severe out-of-service driver or vehicle violation histories, or unvetted drivers.30 Similarly, brokers may be negligent by contracting with a newly formed or reincarnated carrier created specifically to bypass prior FMCSA shutdown orders, revoked operating authority, or bad safety records. Essentially, continuing to conduct business with
26 Russell v. Northeast Texas Land and Timber, 2009 Ark. App. 828, 372 S.W.3d 816 (2009).
28 49 U.S.C. § 13102(2).
27 Id.
30 Id.
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29 Russell supra.
a carrier when there are significant red flags indicating it is a chameleon carrier. Brokers may also fail to conduct reasonable due diligence by relying strictly on a carrier’s active registration while ignoring obvious red flags in internal databases, outdated safety audits, or adverse inspection histories.31 In addition to negligent hiring arguments, a broker also may become liable for causing a collision if it is proven they are imposing unrealistic schedules on the driver. Forcing tight delivery windows that foreseeably require or induce a driver to speed, bypass mandatory rest breaks, or violate federal hours of service regulations establish the necessary level of control. Also, negligence may occur when a broker retains detailed operational control over the shipment, such as: controlling routes, imposing specific equipment restrictions, or requiring constant monitoring, that establishes an agency or master-servant relationship.32 As a reminder, if a motor carrier or broker admits vicarious liability for its driver’s conduct, direct negligence claims are generally barred unless the plaintiff has a viable claim for punitive damages based on the employer’s, or broker’s, own independent, egregious misconduct.33 Now that brokers can no longer argue the FAAAA preempts the state laws, each state must make sure the brokers are not able to change law to enable broker immunity. By remaining vigilant in courtrooms and before the legislature, the Arkansas trial lawyers can ensure that those who profit from arranging commercial freight transportation are held to the same standard of reasonable care that protects every motorist on Arkansas roads. █ 31 Miller v. Costco Wholesale Corp., No. 317CV00408MMDCLB, 2022 WL 526140 (D. Nev. Feb. 22, 2022). 32 Mendoza v. BSB Transp., Inc., No. 4:20 CV 270 CDP, 2020 WL 6270743 (E.D. Mo. Oct. 26, 2020). 33 Elrod v. G & R Const. Co., 275 Ark. 151, 628 S.W.2d 17 (1982).
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FALL 2026 | ATLA DOCKET
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Closing the Distance: ATLA Helps Kids’ Chance of Arkansas Celebrate
25 Years When the cost of a tank gas
threatened to keep scholarship recipients from their own
ceremony, the Arkansas Trial Lawyers Association stepped up and made sure every
recipient could be there. By Zach Hatfield
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KIDS CHANCE SCHOLARSHIP
A
workplace death or catastrophic injury takes a parent. In the same instant, it can take a family’s primary source of income, leaving a financial void in an already grieving home. For the children of these families, college can quietly slip out of reach, or is deliberately set aside, as they assume responsibilities a parent once carried. This is a tragic reality too many kids face, but, for the past twenty-five years, Kids’ Chance of Arkansas has ensured they don’t have to face it alone. Kids’ Chance of Arkansas was incorporated in 2001 to provide educational scholarships to the dependents of Arkansas workers killed or permanently and totally disabled on the job. Although workers’ compensation replaces a portion of the workers’ lost wages, it is only designed to cover basic needs, meaning many families are unable to afford to send their children to college. Kids’ Chance fills that gap. Through 2025, the program has awarded 532 scholarships totaling $1,162,625. Each award is an investment in a son or daughter who might otherwise have watched the door to higher education close. This year’s twenty recipients were honored at the 25th Annual Scholarship Awards Ceremony, which was held at the William J. Clinton Presidential Library and Museum in Little Rock. For many families, the ceremony is more than an award presentation. It is a moment for recipients to share their stories and be recognized for the hardships they’ve overcome. For me, one of these stories came from a familiar face. Sophia and I went to high school together and shared several classes. Hearing her story was a reminder of how close to home these tragedies strike. Kids’ Chance recipients aren’t strangers; they’re kids who grew up in our neighborhoods, came through our schools, and played on our sports fields. Sophia’s father worked construction until a fall from a roof left him in a vegetative state. For nearly five years, her family lived in that long in-between before he was taken by pneumonia, an infection his injuries had left him unable to fight. A tragedy like that doesn’t just take a parent; it takes future plans.
trip to Little Rock. After everything these families had already endured, the last thing standing between them and their own recognition was the price of a tank of gas. That’s where ATLA stepped in to close the distance. The Association raised $5,000 ($250 for each of the twenty recipients) to cover their transportation to the ceremony. A straightforward gift with an outsized meaning. Because of it, no recipient had to give up their seat at the ceremony over the cost of getting there. Every recipient could be present, with family beside them, to be recognized and celebrated. And for some, the gift stretched beyond the ceremony. Sophia told me that same $250 eased the miles between her unpaid internship and soccer practice. For ATLA’s members, the decision was an easy one. Many trial lawyers spend their careers standing beside and fighting for individuals and families who have been dealt a difficult hand, including after a workplace injury or death has upended their lives. They see, up close, how a single event can change the course of an entire household. Helping these recipients is a continuation of that work, carried to the next generation, reflecting a tradition of giving that runs deep within the Association. Kids’ Chance of Arkansas puts it best in its own words: “Your generosity makes a difference that lasts a lifetime.” This year, twenty recipients were able to cross the stage, and twenty futures are a little brighter for it. Together, we’re changing lives through education, and ATLA is honored to have helped close the distance.
Sophia grew up on the soccer field and hoped to play in college at the University of Colorado Boulder, but the cost of moving and housing pushed that dream out of reach, so she enrolled at the University of Arkansas instead. She paid her own tuition and worked through every semester, but her Kids’ Chance scholarship gave her room to breathe. She never had to work full time, and when her rent jumped fourteen percent during her junior year, the scholarship was the difference between making it and not. Today, Sophia holds a bachelor’s degree in early childhood education and is finishing her master’s, interning at Asbell Elementary, and coaching a youth soccer club. Soon, she plans to teach K-6 graders in Northwest Arkansas. But stories like Sophia’s can only be shared and recognized if they can make it to the ceremony in the first place. As this year’s ceremony drew closer, several recipients faced one more obstacle: they simply couldn’t afford the gas to make the
To learn more, donate, or refer the dependent of a worker in a compensable Arkansas workers' compensation claim, visit kidschancear.org. █ FALL 2026 | ATLA DOCKET
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The Business Behind the Verdict Why Winning Cases Isn’t the Same as Running a Healthy Plaintiff Firm By Charlie Feehan, President, Abacus Advisors
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THE BUSINESS BEHIND THE VERDICT
For more than 20 years, The Forge Companies have worked alongside plaintiff attorneys and their clients through the settlement planning process. What began in 2003 as Forge Consulting, a national insurance agency specializing in structured settlements and annuities, has grown as we have identified additional gaps facing attorneys, their clients, and their firms. One of those gaps had little to do with the settlement itself. Plaintiff attorneys are trained to advocate, negotiate, litigate, and win cases. But attorneys who own or lead a firm are also responsible for running a business, often while managing unpredictable cash flow, increasing case costs, payroll, trust accounting, hiring, and the operational demands that come with growth. That need spurred the creation of Forge Capital, which provides financial and business support services tailored to attorneys and law firms, including insurance services, attorney fee deferral solutions, lien solutions, and other resources designed around the way contingencyfee firms operate. Through its subsidiary, Abacus Advisors, Forge Capital also helps firms handle the day-to-day business functions that can pull attorneys away from practicing law — including bookkeeping and IOLTA accounting, bill pay, settlement support, payroll, and HR administration. The philosophy behind these services is simple: a successful law practice needs to be a well-run business. FALL 2026 | ATLA DOCKET
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THE BUSINESS BEHIND THE VERDICT Treat the Firm Like a Business One of the most important mindset shifts for any solo, small-firm, or growing-firm attorney is recognizing that owning a law firm means owning a business. That means thinking beyond the next case or the next settlement. Where does the firm want to be in three or five years? What types of cases do its lawyers want to handle? What does the ideal team look like? Which functions should remain with attorneys, and which can be delegated or outsourced? A written growth plan does not need to predict every future decision. The process itself creates value by requiring partners to establish priorities, reach consensus, and communicate those goals to the rest of the firm. It also helps to build the infrastructure for the firm you want to become before you desperately need it. Good systems around case management, accounting, reporting, and operations may feel unnecessary when a firm is small. As the business grows, however, informal processes become harder to manage. Organization creates visibility, and visibility enables better decision-making. Look Beyond the Money That Came In Revenue is obviously important. But revenue alone does not tell the full story of a law firm’s financial health. Many businesses are managed primarily by lagging indicators, which tell leaders what has already happened. For plaintiff firms, those measures may include the number of matters settled and the amount of legal fees collected. Those numbers matter, but they are backward-looking. Leading indicators, such as new matters signed and forecasted fees from open cases, can offer insight into what’s likely to come next. This distinction 14
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matters for contingency-fee firms because cash flow can be uneven. One large resolution may make a month or quarter look exceptionally strong, even though the timing of the next significant fee remains uncertain.
can help identify discrepancies while transactions are still recent and easier to investigate.
The goal is to understand more than the current bank balance.
Client funds must be carefully tracked, with transactions associated with the appropriate client and balances regularly reconciled. Specific trust-account requirements vary by jurisdiction, but the underlying principle does not: as a firm grows, its financial controls should strengthen rather than become more informal.
Tracking information such as case type, marketing source, expected fees, expected completion dates, and actual results can help a firm begin to understand its pipeline and anticipate future cash flow. Over time, that information can help leadership answer more valuable questions: Which referral sources are generating the right cases? Which types of cases are most valuable to the firm? How closely do projected fees match actual results? How much expected revenue is currently tied up in open matters? Knowing what happened last month is useful. Knowing what may happen six months from now is powerful to helping a firm plan. Do Not Let Strong Collections Hide Weak Systems A significant fee can make almost any month look good. It can also make underlying problems easier to overlook.
The same discipline applies to IOLTA accounts.
Remember That Growth Costs Money A growing plaintiff firm may want to hire another attorney, expand its support staff, invest in advertising, adopt new technology, open another location, or take on cases requiring greater upfront costs. Each opportunity may ultimately produce additional revenue, but most require investment before that revenue arrives. That makes cash particularly important.
management
Because law-firm cash flow can be inconsistent, partners should consider setting a target cash balance to retain in the business rather than treating every strong collection period as an opportunity to distribute available funds. Growth itself requires capital.
Strong collections may temporarily hide weak reporting, inefficient processes, accounting errors, or missed opportunities. The purpose of good financial reporting is not simply to document how much money came in and where it went. Accurate financial statements can help firm leaders identify trends, spot potential problems, and make more informed business decisions.
Good financial visibility allows leadership to make those investments more intentionally.
Regular reconciliation is part of that process. Comparing the firm’s records against actual bank activity each month
Those are business questions, not legal questions. But for firm ownership, they can be just as important.
Can the firm afford another hire? Is the marketing budget producing the right cases? How much capital is already committed to open matters? What happens if a significant settlement expected this quarter doesn’t arrive until next quarter?
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FALL 2026 | ATLA DOCKET
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THE BUSINESS BEHIND THE VERDICT Focus Your Time Where It Matters Most Running a law firm does not mean the attorney needs to personally handle every business function. In fact, one of the most important decisions a growing firm can make is determining the highest and best use of the owner’s time. Accounting, bookkeeping, payroll, HR, marketing, technology, and other administrative responsibilities may all be necessary, but they do not necessarily need to live on an attorney’s desk. Outsourcing appropriate functions can free both time and internal resources, allowing attorneys and staff to focus more attention on clients, cases, and growth. That is central to the Abacus approach. By taking repetitive, specialized administrative functions off the firm’s plate, Abacus helps attorneys focus on their core business while gaining access to professionals
focused on bookkeeping, payroll, HR, and financial operations. The Business Behind the Verdict Winning cases will always be at the heart of a successful plaintiff practice. But winning cases does not automatically create a healthy business. The firms best positioned for sustainable growth understand both sides. They know their cases, but they also know their numbers. They pay attention to today’s collections while planning for tomorrow’s expenses. They build systems before growth forces them to scramble, and they recognize when their time is better spent practicing law than managing an administrative function that someone else can handle more efficiently. That same philosophy has shaped The Forge Companies’ growth.
We began by helping attorneys and their clients navigate structured settlements and annuities. As additional needs emerged, we expanded our platform to address them. Advocacy Wealth Management was established to provide financial planning services. Advocacy Trust was developed to provide trust planning and administration. Forge Capital was created to provide financial and business support tailored to attorneys and their firms. Abacus Advisors is an important part of that effort. Whether a law firm is just getting started, cleaning up outdated processes, or preparing for its next stage of growth, Abacus provides practical support including IOLTA accounting, bill pay, settlement support, payroll processing, HR administration, and bookkeeping or IOLTA clean-up projects.
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THE BUSINESS BEHIND THE VERDICT For more than two decades, Forge has focused on identifying the gaps that make attorneys’ work more complicated and building services designed to help fill them. Because sometimes the best way to help a law firm succeed is not in the courtroom. It is helping strengthen the business behind the verdict. █
Disclaimer: This communication is for informational and educational purposes only and does not constitute an offer, solicitation, or recommendation to buy or sell any security or investment product, nor is it an official statement of The Forge Companies LLC or its affiliates (“Forge”). The products and services described herein may be offered by Forge or its affiliates, including Forge Capital and Abacus Advisors, and are subject to eligibility, availability, and applicable terms and conditions, which may vary by jurisdiction. Forge does not provide tax, accounting, or legal advice; clients should consult their own qualified professionals regarding their specific circumstances. Securities and insurance products, where applicable, are not FDIC-insured, are not guaranteed by any bank or government agency, and may lose value. Bookkeeping, payroll, and administrative support services are provided independently of, and do not constitute, legal or fiduciary advice regarding trust accounting or other compliance obligations, which remain the responsibility of the client. This communication may contain confidential or legally protected information; unauthorized use, copying, or distribution is prohibited.
About Charlie Feehan
Charlie spent the first 18 years of his career in sales, brand management, and sales leadership for a global pharmaceutical firm. After leaving the pharmaceutical industry, Charlie opened and operated numerous small businesses throughout the Atlanta area. In 2014, Charlie’s career pivoted again when he joined Abacus to meet a need in the legal industry. At the time, Abacus had 20 clients. Charlie has helped grow and scale Abacus into the company it is today, serving almost 300 clients.
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A RIGHT TO EVERY MAN'S EVIDENCE
Several years ago
this author wrote the below article on discovery of incident reports in hospital records. Although the arguments are sound, courts have been reluctant to allow a plaintiff access to the best information to prove negligence in a case. The article is updated with several cases which have protected information which should be available to a plaintiff. Frankly, a legislative change may be needed to prevent hospitals from hiding their negligence. This article also discusses the latest scheme by which hospitals hide their negligence. The Patient Safety and Quality Improvement Act (PSQIA) is raised frequently to protect from disclosure relevant information of negligence.
Incident Reports and Patient Safety and Quality Improvement Act (PSQIA) Privileges BY GEORGE WISE
INCIDENT REPORTS & PSQIA PRIVILEGES
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INCIDENT REPORTS & PSQIA PRIVILEGES A Right to Every Man’s Evidence In a medical negligence case, the complete story is never told in the conventional hospital chart. For example, in cases involving hospital falls and medication errors, the traditional hospital chart never describes the incident. The only access the plaintiff has to the truth is by obtaining records created by a hospital investigation. When a car wreck occurs, the investigating officer generally takes statements from all parties and witnesses. These are available to everyone and are some of the first things obtained in investigating that case. When an accident or incident happens in a hospital, typically some employee of the hospital documents what happened through an incident report. These reports are often the best source of contemporaneous information about the incident and should be obtainable as part of the routine investigation of the case. Creating incident reports are part of the hospital routine and are not part of the proceedings of a peer review committee. Peer review or quality assurance committees exist in every hospital to review, ensure and improve the quality of patient care. Those committees do not exist to hide negligence. Case law from Arkansas and around the country has allowed discovery of incident reports or other statements taken during an investigation and has distinguished those reports from the actual proceedings of a peer review committee. Arkansas has two peer review statutes which grant a privilege against disclosure of certain limited information. The first privilege is found at A.C.A. §16-46-105 which provides as follows: (a)(1)(A) The proceedings, minutes, records, or reports of organized committees of hospital medical staffs or medical review committees of local medical societies, or a committee organized by and operating pursuant to a 20
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written plan or policy under the auspices of a professional corporation or a professional limited liability company whose members are licensed to practice medicine in this state, having the responsibility for reviewing and evaluating the quality of medical or hospital care, and any records, other than those records described in subsection (c) of this section, compiled or accumulated by the administrative staff of such hospitals or a physician group peer review committee as defined under §20-9-501 in connection with such review or evaluation, together with all communications or reports originating in such committees, shall not be subject to discovery pursuant to the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, § 25-19-101 et seq., or admissible in any legal proceeding and shall be absolutely privileged communications.
operating pursuant to a written plan or policy under the auspices of a professional corporation or a professional limited liability company whose members are licensed to practice medicine in this state.
(B) The submission of such proceedings, minutes, records, reports, and communications to a hospital governing board or physician group peer review committee as defined under § 20-9-501 shall not operate as a waiver of the privilege.
Subsection (c) clearly states that original hospital records and incident reports are discoverable. Furthermore, subsection (a) declares that incident reports are discoverable even when submitted to a peer review committee.
(2) Neither shall testimony as to events occurring during the activities of such committees be subject to discovery pursuant to the Arkansas Rules of Civil Procedure or the Freedom of Information Act of 1967, § 25-19-101 et seq., or admissible. (b)(1) Nothing in this section shall be construed to prevent disclosure of the data mentioned in subsection (a) of this section to appropriate state or federal regulatory agencies which by statute or regulation are entitled to access to such data, nor to:
(2) Further, nothing in this section shall be construed to prevent discovery and admissibility if the legal action in which such data is sought is brought by a medical practitioner who has been subjected to censure or disciplinary action by such agency or committee or by a hospital medical staff or governing board. (c) Nothing in this section or § 209-308 shall be construed to apply to original hospital medical records, incident reports, or other records with respect to the care o r treatment of any patient or to affect the discoverability or admissibility of such records. (Emphasis added)
The other statute, A.C.A. § 20-9-503. Proceeding and records confidential— Exception, provides: (a)(1) The proceedings and records of a peer review committee shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are subject to evaluation and review by the committee.
(A) An organized committee of hospital medical staffs or governing boards where the medical practitioner seeks membership or clinical privileges; or
(2) No person who was in attendance at a meeting of the committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions, or other actions of the committee or any members thereof.
(B) A committee organized by and
(b)(1)
However,
information,
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INCIDENT REPORTS & PSQIA PRIVILEGES documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such action merely because they were presented during the proceedings of the committee. (Emphasis added) (2) Nor shall any person who testifies before the committee or who is a member of the committee be prevented from testifying as to matters within his or her knowledge, but the witness shall not be asked about his or her testimony before the committee or about opinions formed by him or her as a result of the committee hearings. (c) The submission of the peer review proceedings, minutes, records, reports, and communications to a hospital governing board or physician group peer review committee as defined under § 20-9-501 shall not operate as a waiver of the privilege. § 20-9-503(b)(1) is significant because it indicates that original hospital records, records kept in the ordinary course of business and incident reports are not protected from discovery
A few Arkansas cases have interpreted this statute and give it a very narrow construction. In National Bank of Commerce v. HCA Health Services, 304 Ark. 55, 800 S.W.2d 694 (1990), a treating physician was allowed to testify about his conversations with hospital management regarding a shortage of nurses which may have contributed to the injury involved in that case; however, records of the actual disciplinary action against the nurse involved in the patient’s care were privileged under the statute. In Cochran v. St. Paul Fire & Martine Ins. Co., 909 F.Supp. 641 (W.D. Ark. 1995), Judge Franklin Waters ordered discovery of medication incident reports. Judge Waters correctly noted that by the plain language of the statute incident reports are not protected from discovery. He also said the following regarding the factual nature of incident reports: The incident reports are merely statements of fact. They contain no opinions of or conclusions raised by any administrative staff or review committee. While the forms do contain a section to check or list factors contributing to the accident and an area to include comments, those areas are also filled in by the staff person. Thus, the report itself does not reveal any information regarding evaluation or review by any committee or administrative staff. Judge Waters also rejected the argument that the incident reports in that case were prepared in anticipation of litigation by pointing out that there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation. This court addressed this issue in Baptist Health v. Circuit Court of Pulaski County, 373 Ark. 455, 284 S.W.3d 499 (2008). In this case this Court ordered production of occurrence reports related to a fall at Baptist Health Rehabilitation Institute. This Court ordered production of the occurrence report and the Arkansas Supreme Court denied BHRI’s Petition for Writ of Certiorari thereby upholding this Court’s order. See also Arkansas Foundation for Medical Care v. Saline County Circuit Court, 2012 Ark. 372, 423 S.W.3d 542 (2012) for a similar result.
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Records Kept in the Ordinary Course of Business Are Discoverable Cases from around the country consistently view peer review privilege statutes as granting a limited privilege. Most statutes are like the Arkansas statute and protect only records and proceedings of the peer review committee. Thus, these cases revolve around the definition of “records and proceedings” of the committee. Columbia/HCA Healthcare Corporation v. The Eighth Judicial District Court of the State of Nevada, County of Clark, 936 P.2d 844 (1997) involved Nevada’s peer review statute which is similar to the Arkansas statute. N.R.S. 49.265 provides:
INCIDENT REPORTS & PSQIA PRIVILEGES 1. Except as otherwise provided in subsection 2: (a) The proceedings and records of: (1) Organized committees of hospital ... having the responsibility of evaluation and improvement of the quality of care rendered by those hospitals or organization; and (2) Review committees of medical or dental societies, are not subject to discovery proceedings... In that case the Nevada Supreme Court was faced with interpreting whether occurrence reports obtained soon after the death of a child were “proceedings and records of” a committee evaluating the quality of care rendered by the hospital. As is typical, the hospital denied the existence of any statements or reports; however, depositions of hospital employees revealed that occurrence reports had been created. This case is also significant because the initial request for an investigation was by an attorney for the hospital. The court found that the reports were prepared as a matter of hospital routine and simply because an attorney requested the investigation did not make this routine fact gathering “in anticipation of litigation”. The Nevada Supreme Court adopted the approach of the North Dakota Supreme Court in Trinity Medical Center v. Holum, 544 N.W.2d 148 (1996). The North Dakota court stated: We construe the phrase “proceedings and records of” the committee to be limited to the formal proceedings before the committee, and the internal records g e n e r a t e d by the committee. Specifically, this would include testimony given to the committee at the hearing, the deliberations and discussions among committee members, and the minutes of committee meetings. It does not include other information or data provided to the committee or collected for the committee’s review by hospital
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departments or employees. It is the internal functioning of the committee which is protected. The Trinity case involved negligent treatment by a neurosurgeon who eventually resigned from the hospital and subsequently was diagnosed with Alzheimer’s disease, but not before seriously injuring at least three patients. The hospital stonewalled producing any information about this doctor and his treatment of patients. In concluding that only the internal function of the committee was protected, the Court found it significant that the North Dakota legislature chose only to protect the “records and proceedings” of the committee. The Court FALL 2026 | ATLA DOCKET
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INCIDENT REPORTS & PSQIA PRIVILEGES concluded that the legislature could have specifically protected documents supplied to the committee but chose not to. (Columbia/HCA Health Care was reaffirmed in Guzman-Ibarguen v. Sunrise Hosp. and Medical Center, 2011 WL 2149542 and followed in Harrison v. Munson Healthcare, Inc., 304 Mich. App. 1, 851 N.W.2d 549 (2014)) In Riverside Hospital, Inc. v. Robinson, 272 Va. 518, 636 S.E.2d 416 (2006), a hospital fall case, the Virginia Supreme Court ordered production of incident reports which in that case were called “quality care control documents”. The Virginia Court pointed out that the reports were simply a collection of factual information which should be available to the plaintiff. The court said that using factual information in a peer review process is insufficient to automatically invoke the peer review process. A similar result was reached in In re Living Centers of Texas, Inc., 49 Tex Sup. Ct. J. 37, 175 S.W.3d 253 (2005), a case involving nursing home peer review. Connecticut has a statute similar to the Arkansas statute. In Babcock v. Bridgeport Hospital, 742 A.2d 322 (1999) the Connecticut Supreme Court reviewed a trial court’s ruling regarding the hospital’s infection control committee. This case involved questions regarding whether a hospital had properly controlled the spread of an infection in its hospital. Plaintiff sought documents prepared by the hospital infection control committee which were generated as part of that committee’s routine practice of monitoring and attempting to control infections in the hospital. The Connecticut Supreme Court held that these committee records were not part of the proceedings of a medical review or peer review committee and, therefore, should be produced. In Huether v. District Court of the 16th Judicial District of the State of Montana, 4 P.3d 1193 (2000) the Montana Supreme Court explained the distinction between routine hospital records and records of a peer review committee by giving the following example: 24
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Thus, for example, an “incident report” including a retrospective report of what occurred in the course of a hospital patient’s care and treatment would be discoverable by the patient. Records of the discussion and recommendations of a peer review committee as to professional training, supervision, or discipline as a result of such an incident and report would not be discoverable. These cases teach us that it is important to distinguish between records or incident reports which were prepared in the routine course of hospital business and records generated during the proceedings of a true peer review committee. Many documents may end up as evidence in committee deliberations; however, they are not privileged if the documents were “routine accumulative information”. See Barnes v. Whittington, 751 S.W.2d 493 (Tex. 1988). A Privilege Should Not Suppress the Truth Romero v. Cohen, 679 N.Y.S.2d 264 (1998) involved the wrongful death of an infant. This case advances the proposition that courts should adopt a liberal approach to the disclosure of relevant information and narrowly construe privileges. Upholding privileges often retards the function of a trial which is to ascertain the truth. In this case the New York court compelled discovery of a written statement the Defendant doctor had given which was reviewed by a peer review committee. An overbroad privilege defeats the purpose of advancing patient care. If a hospital can hide its negligence, there is no incentive to improve care. In AMISUB, Inc v. Buckley, 206 Neb. 596, 618 N.W.2d 684 (2000), an incident report was prepared as a matter of hospital routine in case in which a minor fell out of her bed. Nebraska’s
peer review statute excluded from the privilege records kept in the ordinary course of business. Despite the language of the statute, the hospital argued that the incident report was privileged because it was prepared for quality review purposes, even though there was no evidence that the report was ever reviewed by a peer review committee. Nebraska’s court found this approach to be overbroad. It adopted the reasoning of the Illinois Supreme Court in Roach v. Springfield Clinic, 157 Ill.2d 29, 623 N.E.2d 246, (1993), in which the Illinois court said about a broad privilege that, “it would be substantially more difficult for patients to hold hospitals responsible for their wrongdoing through medical malpractice litigation. So protected, those institutions would have scant incentive for advancing the goal of improved patient care.” Id, 623 N.E.2d at 251. Peer review privileges were never intended to suppress the truth. Fridono v. Chuman, 747 N.E.2d 610 (Ind.App. 2001) involved an interesting twist on this issue. In this case the plaintiff tried to prohibit the defendant from using a document the defendant had obtained involving the peer review of the plaintiff’s expert. The plaintiff’s expert testified that he had never had his hospital privileges restricted. The defendant impeached the expert with a letter which had in fact imposed restrictions on his privileges. The letter was the result of a peer review hearing concerning the expert. The Indiana court said that since the letter was not being used in the context of peer review but in a judicial proceeding the privilege did not apply. In other words the court said that using peer review materials in judicial proceedings is outside the scope of the privilege. To exclude the letter would suppress the truth. Peer review is valuable and should be encouraged. The prosecution of medical negligence cases is also a form of peer review. Not surprisingly, defendants often argue that all records submitted to a peer review committee
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INCIDENT REPORTS & PSQIA PRIVILEGES
should be privileged, otherwise doctors will be unwilling to sit on peer review committees and conduct critical evaluation of their colleagues. However, as an Illinois court pointed out, if a hospital were allowed to furnish all information from an incident to a peer review committee and then invoke a statutory privilege, it could insulate itself from disclosure of adverse facts except those matters actually contained in a patient’s record. Allowing a hospital to protect itself and its doctors from malpractice by hiding harmful facts behind the peer review privilege would stifle any incentive for advancing the cause of a patient’s well being – the goal peer review statutes are designed to achieve. May v. Wood River Township Hospital, 257 Ill. App. 3d 969, 195 Ill. Dec. 862, 629 N.E.2d 170, 174 (1994). Followed in Klaine v. Southern Illinois Hosp. Services, 2014 IL App (5th) 130356, 15 N.E.3d 525 (2014), where the Court noted that ““[i]f the simple act of furnishing a committee with 26
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earlier-acquired information were sufficient to cloak that information with the statutory privilege, a hospital could effectively insulate from disclosure virtually all adverse facts known to its medical staff, with the exception of those matters actually contained in a patient’s records”. A privilege should not outweigh the search for the truth. The Rhode Island Supreme Court in Moretti v. Lowe 592 A.2d 855 (R.I. 1991) aptly stated: In enacting our peer review statute, the Legislature recognized the need for open discussions and candid self-analysis in peer-review meetings to ensure that medical care of high quality will be available to the public. That public purpose is not served, however, if the privilege created in the peer review statute is applied beyond what was intended and what is necessary to accomplish the public purpose. The privilege must not be permitted to
become a shield behind which a physician’s incompetence, impairment or institutional malfeasance resulting in medical malpractice can be hidden from parties who have suffered because of such incompetence, impairment or malfeasance. Citing Moretti a Georgia federal district court said this: …documents that would have existed regardless of whether the committee may have considered them in an investigation are discoverable, but only from their original sources; and names and addresses of people having personal knowledge of events that are the subject matter of the litigation may be acquired through interrogatory and deposition, see Mount Sinai Medical Center v. Bernstein, 645 So.2d 530, 532 (Fla.Dist.Ct.App.1994) and Moretti v. Lowe, 592 A.2d 855, 858 (R.I.1991). Doe v. UNUM Life Ins. Co. of America, 891 F.Supp. 607 (1995)
INCIDENT REPORTS & PSQIA PRIVILEGES Labeling a Document Peer Review Does Not Make It So Cannon v. Lake Regional Medical Center, Inc., 121 P.3rd 74 (UT App. 2005) involved allegations of negligence on behalf of Gary Cannon who fell at the hospital and died from a subdural hematoma. The plaintiff sought incident reports which were prepared regarding Mr. Cannon’s fall. The trial court found that the incident reports were protected. The Appellate Court reversed the trial court and ordered it to hold additional hearings regarding whether the incident reports were prepared exclusively as part of the peer review process. The Utah Court said: “Allowing the hospital to label information as an “incident report” or an “unusual occurrence report,” and then declare by affidavit that such reports are created and used only for the purpose of evaluating and improving health care at the hospital, effectively leaves the determination of whether these reports should be produced for discovery up to the party who possess them”. The Utah court went on to state that the peer review privilege was not intended to shield hospitals from liability or protect hospitals from malpractice claims. The court said that it was dangerous to construe the privilege so broadly that relevant evidence or evidence which might lead to relevant evidence could be hidden by a hospital. Giangiulio v. Engels Memorial Hospital, 850 N. E. 2nd 249 (Ill. App. 2006) involved a patient who was attacked and stabbed by another patient. This plaintiff sought production of the knife used in the stabbing and the identity of the attacker as well as information from the attacker’s hospital record. The defendant objected on numerous grounds among them the Illinois peer review privilege. The Illinois court found that the information sought had nothing to do with peer review and that trying to label it a peer review material was a subterfuge.
Peer Review Statutes Should Not Apply to Medical Negligence Cases An enlightened approach to peer review statutes comes from Kentucky case law. In Sisters of Charity Health Systems, Inc. v. Raikes, 984 S.W.2d 464 (1999), the Kentucky Supreme Court said, “We begin our analysis with the nearly universal rule that privileges should be strictly construed because they contravene the fundamental principle that ‘the public...has a right every man’s evidence.’ Trouble v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. ed. 2d 186 (1980).” The Kentucky Supreme Court also noted that the right to relevant evidence or the right to present that evidence, while not expressly protected by the constitution, creates a right of due process of law. The court observed that in many instances denying a party access to relevant information creates constitutional implications. The court also noted that peer review statutes were not designed to allow a defendant to hide negligence or to allow a defendant to benefit from the statute’s privileges. Although the Kentucky statute is similar to the Arkansas statute, the Kentucky Supreme Court went so far as to hold that the peer review privilege only applies to lawsuits filed against actual peer review entities and has no application whatsoever in a medical negligence case. Arkansas Cases Since This Article Was Written Paulino v. QHG of Springdale, Inc., 2012 Ark. 55 involved the question of whether Arkansas recognized negligent credentialing as a cause of action against a hospital. The defendant hospital argued that the peer review statutes gave it immunity from a claim of negligent credentialing. The Arkansas Supreme Court declined to recognize a cause of action for negligent credentialing and did not rule on the claim of immunity under the Arkansas Peer Review Statute. Williams v. Baptist Health, 2019 Ark. App. 482, highlights the contradiction when the plaintiff is a doctor. Dr. Victor
Williams sued Baptist for restricting his privileges. The Arkansas Peer Reviw statute provides an exception to the peer review privilege when the plaintiff in the legal action is a doctor who was adversely affected by the peer-review proceedings. Dr. Williams was able to discover records relating to the review of cases on which complaints had been filed. Jefferson Hosp. Ass’n v. Smith, 2019 Ark. App. 27 broadened the scope of what a hospital can hide from discovery. The Arkansas Court of Appeals reversed a trial court finding that the misinterpreted the statute by finding that a committee proceeding is a prerequisite to applying the statutory privilege. Th Appeal Court broadened the privilege to encompass records compiled by hospital administrative staff “in connection with” its qualityreview process, not just the records from those cases that are ultimately referred to a committee. It is little wonder that many hospitals changed the name of incident reports to quality assurance reports following this decision. Csiszer v. Wren, 2009 U.S. Dist. LEXIS 4436 (W.D. Ark., Jan. 8, 2009) involved a discovery dispute present to the magistrate. Plaintifffs sought In Request for Production Numbers 3 and 45, Plaintiffs request any incident reports, adverse reaction reports, variance reports, unusual occurrence reports or similar reports concerning the care and treatment of the plaintiff. The Defendant stated that no such reports existed but objected pursuant to Arkansas Code § 16-46-105’s peer review and quality assurance privileges. Plaintiff also requested any documents created in the ordinary course of business that were provided to any medical committee or part of any in-house investigation concerning the care and treatment provided to the plaintiff. The Defendant objected on the basis that the requested materials are protected by the peerreview and quality assurance privileges. The magistrate noted that the burden is on the Defendant to show that the FALL 2026 | ATLA DOCKET
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INCIDENT REPORTS & PSQIA PRIVILEGES privilege applies but allowed the defendant to produce a log listing each document withheld, and the privilege claimed, and an affidavit setting forth the basis of the privilege. After in camera review the Magistrate found the documents to be privileged. This case illustrates the importance of at least pressing the defense to produce a privilege log. The most recent case is Gonzales v. Cont’l Cas. Co., 2022 Ark. App. 501. Gonzales involved a dispute over a code blue sheet which was a routine part of the medical record. The code record was the back side of the Cardiopulmonary Arrest Record which documents a code blue called during any hospitalization at Arkansas Childrens’s Hospital. ACH argued that the document was the back side of a triplicate copy of the arrest record and was created for two purposes: (1) for review by ACH’s quality-assurance committees and (2) to provide deidentified information to the American Heart Association’s National Registry of Cardiopulmonary Resuscitation, which is a natural quality-improvement initiative that collects resuscitation data from hospitals across the country to create evidence-based guidelines for inpatient CPR. The plaintiff argued that the document is filled out every time a “code blue” happens at ACH regardless of whether the event is ultimately presented to a peer-review committee. The plaintiff provided testimony from experts as well as a nurse who was present during the code blue, detailing that the document is kept in the normal course of business and is therefore part of a patient’s record. Furthermore, Plaintiff argued the document falls within the plain meaning of the term “original source” and is not covered by the peer-review privilege. ACH set forth the affidavit of Pam Trevino, the director of quality, patient safety and clinical risk management, who attested that the sought-after third page is kept with the cardiopulmonary arrest records but that the form is used solely for quality improvement. She specified that the 28
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third page asked the participants “to provide additional information about the code for quality improvement purposes only.” Furthermore, she stated that the information was reported to the national quality improvement program working to improve the quality of care given during inpatient CPR. There was no evidence in Gonzales that the document was used for a peer review purpose. The trial judge reviewed the document in camera and ruled it privileged. The Court of appeals agreed. Whether the medical record is called an incident report, occurrence report or quality assurance report, getting complete information about what happened in a hospital or clinic is difficult. The effort to obtain the report cannot stop with the defense response that it is privileged. Discovery of the routine use of the report is essential. Push for a privilege log. Get an in camera review of the report. The PSQIA Indeed, if there is a ‘smoking gun’ to be found ... it is likely to be tucked away in peer review files.” University of Pennsylvania v. E.E.O.C., 493 U.S. 182 (1990). Peer review is frequently used to hide relevant information and the best information about why a plaintiff was injured. The latest argument used to keep relevant information from an injured patient is to raise the federal Patient Safety Quality Improvement Act. When first enacted, this act was so abused by healthcare providers that the Department of Health and Human Services promulgated rules and guidelines to clarify when the act can be used to restrict patient access to information about the patient’s injuries. Patient Safety and Quality Improvement Act of 2005— HHS Guidance Regarding Patient Safety Work Product and Providers’ External Obligations, Federal Register /Vol. 81, No. 100 /Tuesday, May 24, 2016
/Rules and Regulations is attached as exhibit 1 to this reply. Several key statements in this guideline help explain why the Patient Safety and Quality Improvement Act does not apply to hide negligence. Under the Patient Safety and Quality Improvement Act (PSQIA) information is only protected from disclosure if it is Patient Safety Work Product (PSWP). The guidelines were created to help understand what information qualifies as PSWP. As the guidelines point out, “The intent of the system established by the Patient Safety Act is to protect the additional information created through voluntary patient safety activities, not to protect records created through providers’ mandatory information collection activities. For example, a provider may have an external obligation to maintain certain records about serious adverse events that result in patient harm. The document the provider prepares to meet its requirement about such adverse events is not PSWP.” Further, “the Patient Safety Act was not designed to prevent patients who believed they were harmed from obtaining the records about their care that they were able to obtain prior to the enactment of the Patient Safety Act. Nor was the Patient Safety Act intended to insulate providers from demonstrating accountability through fulfilling their external obligations.” Under these guidelines, the purpose for which the information was created is key to determining whether the information is PSWP. The guidelines clearly state that written reports of witnesses accounts of what the witness observed at the time of an incident used for internal risk management are not PSWP. Information related to care or treatment provided to a patient and part of the patient’s original medical record are not PSWP. In other words, the PSQIA does not replace state law regarding a patient’s access to incident reports. “As further stated in the Preamble, ‘‘nothing in the final rule or the statute relieves a provider from his or her obligation to disclose
INCIDENT REPORTS & PSQIA PRIVILEGES information from such original records or other information that is not patient safety work product to comply with state reporting or other laws.’’ These guidelines clarify how information can become PSWP. “The definition of PSWP sets forth three basic ways that certain information can become PSWP: (1) The information is prepared by a provider for reporting to a PSO [Patient Safety Organization] and it is reported to the PSO, (2) the information is developed by a PSO for the conduct of patient safety activities, or, (3) the information identifies or constitutes the deliberations or analysis of, or identifies the fact of reporting pursuant to, a patient safety evaluation system (PSES).” The Burden is on the Medical Car Provider to Prove the PSQIA Is Applicable The burden to prove that the requested information is PSWP is The provider Where a party invoking the privilege does not provide sufficient detail to demonstrate that it has satisfied all legal requirements for its application, it is error to permit that cloak to attach. See, United States v. Construction Products Research, Inc. 74 F.3d 464, 473 (2d Cir. 1996). In 2005, Congress passed the PSQIA and created a limited privilege when a healthcare provider voluntarily reports adverse events, if its compilation and dissemination is not otherwise required by law. 42 U.S.C. §299b-22. The federal privilege and confidentiality for error reporting is only triggered when information: 1. Is gathered through a Patient Safety Evaluation System (PSES) to collect, manage and analyze patient safety information or adverse events; 2. PSES determines which data will be sent to the PSO as work product; and, 3. Is specifically collected for the purpose of reporting to a Patient Safety Organization (PSO).
Whether privilege attaches to the documents and medical records in dispute is determined by the Act, not by whatever labels a hospital chooses to put on documents and medical records. Defendant Hospital’s frequently cite Francis v. U.S., Not Reported in F.Supp.2d (2011) as controlling. First of all Francis was decided before the 2016 HHS guidelines clarified that information reported to non-PSOs is not PSWP. Second, this Magistrate order acknowledged that there was not a consensus among federal courts that a federal privilege existed protecting patient medical records in an FTCA case. (Other courts have disagreed. See: U.S. v. Aurora Health Care, Inc., 91 F.Supp.3d 1066 (2015), a District Court opinion in which the judge said that Wisconsin state law would be applied rather than the PSQIA.) Finally, the Magistrate in Francis only held as privileged the actual deliberations of the peer review committee. Several chronologies about the events in that case were ordered produced. “Separate” information is not privileged. Exclusions are found in the section aptly labeled “Clarification”. This section plainly withholds privilege from “...any original patient or provider record...collected, maintained, or developed separately, or (which) exists separately from a PSES.” 42 U.S.C. §299b-21(7)(B)(i) and (ii). “Separate information” is statutory defined under the PSQIA as: • state incident reporting requirements; • records for compliance with a health oversight agency (e.g, Joint Commission) • complying with disclosures required by Medicare conditions of participation; • information to 3rd parties regarding possible corrective action • corrective action itself.
Work Product is Narrowly Defined Even before the clarification in the 2016 guidelines, only limited work product is protected and work product is narrowly defined. Work product is defined as data which can improve patient safety, health care quality / outcome and is assembled for reporting to a PSES and is in fact reported , 42 U.S.C. §299(b)-21(7). That which is not work product is information NOT FORWARDED TO a PSES, 42 U.S.C. §299b-21(7)(B)(ii), but instead mandated by law, sent to an independent regulatory agency, or simply the result of internal inquiries. Information Otherwise Discoverable Is Not Privileged Congress anticipated – and withheld – arguments of privilege during the discovery process of litigation. Under 42 U.S.C. §299b-21(7)(b)(iii)(I), (II) and (III), the Act shall have no effect on the discovery of or admissibility of information...in a criminal, civil or administrative proceeding. Info not privileged at inception gains no privilege by later transmittal to a PSO or a purported PSO. Such separate information, or a copy thereof, reported to a PSO shall not by reason of its reporting be considered patient safety work product. 42 U.S.C. §299b21(7)(B)(ii). Schlegel v. Kaiser Foundation Health Plan Schlegel v. Kaiser Foundation Health Plan, (E.D.Cal. Oct. 24, 2008), discussed the Act in depth. That Court refused to shield patient safety information, based on the Act’s limited privilege and confidentiality provisions, within the context of a transplant patient’s medical negligence suit. As here, Kaiser’s counsel objected to the disclosure of an investigation into adverse events and asserted state / federal privileges of ‘peer review ’and‘ root cause analyses, arguing that Congress created a broad peer review privilege when it enacted the PSA. The federal Court disagreed and FALL 2026 | ATLA DOCKET
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INCIDENT REPORTS & PSQIA PRIVILEGES specifically ruled that the Act carves out a narrow peer review privilege for work product prepared by a patient safety organization (PSO), or prepared for and reported to a (PSO). Refusing to expand the congressionally established parameters for privilege, Schlegel held the Act excludes investigations neither specifically undertaken for an accredited PSO, nor reported to one. Charles v. Southern Baptist Hospital of Florida, Inc., 209 So.3d 1199 (2017) More recently the Charles case decided by the Florida Supreme Court held that the PSQIA does not protect as privileged work product adverse medical incident reports. The Florida Supreme Court thoroughly analyzed the PSQIA and concluded that …” the records do not become patient safety work product simply because they were placed in a patient safety evaluation system or submitted to a patient safety organization… . Adams v. Bassett Healthcare Network, 248 A.D.3d 1636; 2026 N.Y. App. Div. In this case the hospital created what it labeled RL6 reports to register a variety of incidents, such as accounts about medical procedures, “all near miss events,” falls, medication reactions, employee injuries and certain other events not normally subject to the privilege. The Court rejected the claim that the RL6 reports were privileged under the PSQIA, holding, “Assuming, without deciding, the doubtful proposition that PSQIA applies to this state law claim, defendant failed to demonstrate that the RL6 reports at issue constitute privileged patient safety work product. Neither Moshier ’s affidavit, nor anything else in the record, establishes that these particular reports were actually provided to and reviewed by a PSO (see Brown v St. Mary’s Hosp., 2015 US Dist LEXIS 179597 [D 30
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Conn, Aug. 26, 2015, No. 3:14CV228 (DJS)]; Francis v United States, 2011 WL 2224509, , 2011 US Dist LEXIS 59762, [SD NY, May 31, 2011, No. 09 Civ. 4004 (GBD) (KNF)]; Pal v New York Univ., 2007 WL 4358463, *7, 2007 US Dist LEXIS 91051, *2122 [SD NY, Dec. 10, 2007, No. 06 Civ. 5892 (PAC) (FM)”. Dence v. Wellpath, LLC, 2022 U.S. Dist. LEXIS 215149 In this federal District Court case, the hospital prepared what it called a mortality and morbidity report. This report had a dual purpose of reporting events required by state law and potentially to be reported to a PSO. The district court rejected the hospitals claim of privilege under the PSQIA holding, ““[t] here appears to be no dispute that this M&M Report is the only review that Wellpath performed related to Ms. Butterfield’s death.” Pl.’s Resp. 5, ECF No. 103. Because Wellpath Defendants used the review for the dual purpose of reporting to a_ PSO and meeting their contractual obligations with Josephine County, the M&M Report falls outside the scope of the PSQIA privilege. See Penman v. Correct Care Solutions, 2020 U.S. Dist. LEXIS 131326, 2020 WL 4253214, at *4 (W.D. Ky. Jul. 24, 2020) (“[D]ocuments are not patient safety work product if those documents were collected or maintained for a purpose other than submission to a PSO or for a dual purpose.”) (citation omitted). The burden is on Wellpath Defendants to establish application of the PSQIA privilege to the M&M Report and the Court concludes that Wellpath Defendants have not met that burden.” Mueller v. River Oaks, Inc. 2026 La. App. LEXIS 1348 The plaintiff in Mueller sought in discovery the personnel file of an individual who treated the plaintiff. The plaintiff also sought incident report created by the treating individual as will as
hiring and disciplinary records. The hospital objected to producing all requested records as privileged pursuant to the PSQIA. The trial court conducted an in camera review and found that half of the 46 documents reviewed were privileged and half were not. The hospital’s risk manager testified that all documents identified on the privilege log as Patient Safety Work Product (“PSWP”) were created within the PSES and submitted to the PSO for purposes of analysis and reporting. Nonetheless, the trial court used 42 U.S.C. § 299b21(7)(A) which exempts from the privilege “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system. Such separate information or a copy thereof reported to a patient safety organization shall not by reason of its reporting be considered patient safety work product.” To fight a claim of privilege requires discovery from a risk manager or quality assurance manager. Here is a bullet point argument. 1. The hospital must establish that the specific document qualifies as PSWP • The party asserting privilege bears the burden of establishing the factual and legal basis for the privilege. • A conclusory assertion that a document is a “quality assurance,” “peer review,” or “patient safety” document is insufficient. • The hospital must identify the document, its author, date, purpose, and the statutory basis for treating it as protected patient safety work product. • The privilege applies to qualifying patient safety work product, not merely to documents maintained in a patient safety or quality department.
INCIDENT REPORTS & PSQIA PRIVILEGES 2. The document may be an ordinary business or clinical record • PSQIA does not automatically protect every medical record, incident report, nursing note, medication administration record, or clinical communication. • Records created in the ordinary course of patient care, treatment, or hospital operations may be discoverable independently of a patient safety evaluation system. • A document does not become privileged merely because it is later reviewed by a quality assurance committee or attached to a patient safety investigation. • The hospital cannot create privilege retroactively by placing an otherwise ordinary record into a protected file. 3. The hospital must show the required connection to a PSO or PSES Under 42 U.S.C. § 299b-21(7)(A) (i)(I), information assembled or developed by a provider must be for reporting to a patient safety organization and must actually be reported to the PSO. • If the hospital claims the document was prepared for reporting but cannot establish that it was reported, challenge whether it meets that statutory definition. • Demand identification of the PSO, the reporting date, and the records demonstrating the reporting or placement within a qualifying patient safety evaluation system. • If the hospital relies on the deliberation or analysis category, require it to identify the specific patient safety evaluation system and explain how the document identifies or constitutes its deliberations or analysis.
4. The original-record exclusion is especially important • Section 299b-21(7)(B)(i) expressly excludes a patient’s medical record, billing and discharge information, and other original patient or provider records. • Section 299b-21(7)(B) (ii) excludes information collected, maintained, or developed separately from a patient safety evaluation system. • A hospital cannot convert an independently created record into PSWP merely by submitting a copy to a PSO. • Seek production of the underlying original records, even if a later analysis or commentary about those records is privileged. 5. The hospital cannot shield independently maintained information • If the same information existed in the ordinary medical record, medication administration record, nursing documentation, or other independent hospital record, its separate existence supports an argument that it is not PSWP. • The statutory exclusion applies to information maintained separately from the PSES, even if a copy was later reported to a PSO. • Request the original source documents and any separately maintained versions. 6. The privilege does not extend to every underlying fact • PSQIA protects qualifying work product, not all facts concerning the patient’s care. • Seek the underlying clinical facts through original medical records, depositions, witness testimony, and other independent sources. • The hospital’s
characterization of a document as a rootcause analysis does not automatically make the underlying medical records or independently existing facts privileged. 7. The hospital should produce a privilege log Request a privilege log identifying: • Each withheld document and its date. • Author, recipients, and custodians. • The specific statutory provision relied upon. • Whether the document was created before or after the incident. • Whether it was created in the ordinary course of care or for PSO reporting. • The identity of the PSO and the date of reporting. • Whether the document contains original records or separately maintained information. • Whether any nonprivileged portions can be produced through redaction. 8. Seek in camera inspection and segregability • If the hospital has not established that an entire document is privileged, request that the court inspect it in camera. • Ask the court to order production of nonprivileged portions, underlying records, and factual information that falls outside the statutory definition. • Request that the hospital establish the privilege document by document rather than relying on a blanket assertion. Let’s fight this issue to develop good case law in Arkansas to stop hospitals from hiding negligence. █
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THE WRITER’S BLOCK
The
WRITER’S
BLOCK The Art of the Reply By Brian Brooks
R
eply briefs. Lawyers angst over them. Judges complain that lawyers don’t use them correctly. But, they are the “last word” a lawyer gets in a case; the last chance to drive the argument home and tie up any loose ends. So, they are immensely important. Important enough to spend some time talking about how to approach them.
brief should not be a scaled-down, reshuffled version of the opening brief. You made your points there and don’t need to say the same thing again in a reorganized form. In fact, a typical judicial complaint is that reply briefs don’t say anything new. They’re not additive. Lawyers simply repackage what was already said in the opening brief. If that is all your reply does, don’t file it.
First, let’s talk about what they should not be. Naturally, you cannot introduce a whole new legal theory in the reply. That goes without saying. But beyond that, the reply
Try this. Begin the reply with a blank page, nothing from the prior brief on it at all. Write from scratch and avoid the temptation to cutand-paste from the opening brief.
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You’ll be amazed at how much that helps the process. That said, a reply brief should remind the reader of the principal themes from the opening brief. Don’t assume the judge or the law clerk reads all briefs in one sitting. One might read the opening brief followed by the response then take a break for lunch or even leave the office for the day before reading the reply. Or it could be some other combination of reading and breaks. So, the reply brief needs some reminder of what was argued in the opening brief to trigger memory
THE WRITER’S BLOCK and give context. Two or three direct, concise paragraphs right out of the gate summarizing the prior argument will suffice. Make them truly concise and direct. Don’t belabor things. Get it said and move on. Of course, the reply must take head-on any arguments the other side made that are not handled by the opening brief adequately. That is as obvious as not adding a new legal theory in the reply. But what if nothing like that exists to base the reply on? Do we just skip the reply? No! Some themes are inevitably available and good, persuasive writing fodder. If the response misstated something, calling attention to that misstatement should be front-and-center in the reply. Perhaps a case was misstated, or the record was stated in a misleading way. Or maybe the response skewed one of your arguments to be something very different than the argument you made in an attempt to redefine what the case is about. Use the reply to set things straight. You have the ability to be master of the issues by having the last word in the reply. Use it. Point out arguments that were not addressed from your opening brief. “We stated in the opening brief that the defendant failed to make a contemporaneous objection at trial and thus waived the argument. Defendant had not a word to say about that argument in his response. We take the fact as conceded.” That is a very effective use of the reply brief. It drives home a giant hole in the other side’s case.
opportunity to reiterate the primary theme in the case that means your client prevails. Sum up the case. Draw in all of the bits and pieces of the facts and the law that lead to you prevailing. The judges won’t complain about that reply brief one bit. I’ll see you next time from The Writer ’s Block. █
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As you’re progressing through the brief and addressing points made in the response, state the gist of the point, then cite the reader to the precise place in the response brief where it is located. Make it easy for the judge to find the passage rather than having to grope around in the response brief looking for it. And again, the reply is the last word anyone reads before drafting an opinion. Make sure you take the FALL 2026 | ATLA DOCKET
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