I have had countless Plaintiffs’ attorneys ask for various forms of evidence involving interactions between the Iowa Department of Inspections and Appeals (DIA) and our client. And why wouldn’t they? The Iowa DIA works together with hospitals and medical providers to produce the best possible healthcare. Their inspections and subsequent findings are intended to find areas of improvement, not to identify breaches in the standard of care. To dig-up evidence that, if deemed admissible, would conflate the two concepts in the minds of a jury is a Plaintiff’s dream.
I can imagine that some counsel, in the belief that the documents are not privileged, cough up the correspondence. After all, the documents don’t seem to fit in any traditional privilege box. But they should think twice about doing this. Under Iowa Code § 135B.12:
“The department’s final findings . . . with respect to compliance by a hospital with requirements for licensing or accreditation shall be made available to the public . . . . Other information relating to a hospital obtained by the department which does not constitute the department’s findings from an inspection of the hospital . . . shall not be made available to the public, except in proceedings involving the denial, suspension, or revocation of a license under this chapter.”
Many of these documents should also be considered work product. Once an Iowa DIA investigation is launched, many facilities naturally anticipate that litigation will follow. Many documents they create after this serve the dual purpose of simplifying matters for the investigation and future litigation. Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 48 (Iowa 2004).
So what can we take from this? Oftentimes we get overly broad and unduly burdensome discovery requests. This is just the nature of medical malpractice litigation. When it comes to documentation of interactions with the Iowa DIA, much like avoiding petting the smiling tiger, we should assert our client’s interests and keep those documents in confidence.