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EMORY UNIVERSITY HOSPITAL v. SWEENEY

3/7/1996

William Sweeney and his wife filed the underlying medical malpractice action against Emory University Hospital ("Emory") and an unnamed resident who operated on Sweeney. In the malpractice affidavit required to accompany the Sweeneys' lawsuit, the physician asserted that he reviewed various medical records and a report of the Department of Health & Human Services (DHHR) memorandum in analyzing the matter. He concluded that Emory breached the requisite standard of care by not maintaining appropriate sterile technique during Sweeney's surgery. Sweeney obtained a copy of the DHHR memorandum through an open records request. The DHHR memorandum contained information which was disclosed during Emory's peer review process, but was otherwise available from original sources. Emory moved to strike certain paragraphs of the Sweeneys' complaint and malpractice affidavit contending that they were derived from privileged peer review information. The trial court denied the motion, and we granted Emory's application for interlocutory appeal to address the issue of whether the privilege provided to the proceedings
and records of the medical review committee by OCGA § 31-7-143 follows the material and findings after they are obtained with proper authority by another government agency and included in a report issued by such other government agency?


In August 1992 Sweeney underwent brain surgery at Emory. Approximately three weeks later Sweeney was readmitted to Emory with a serious postoperative infection that required removal of the bone flap covering his surgical wound, leaving Sweeney's head disfigured. Sweeney and his wife learned through a variety of sources including an Emory medical student and an Emory nurse that a large number of the hospital's neurosurgery patients were experiencing similar postoperative wound infections. Sweeney attempted to investigate the problem on his own by questioning various doctors and nurses. Sweeney then lodged a complaint with the DHHR, naming four other neurosurgery patients that he knew had experienced similar postoperative infections.


In response to Sweeney's complaint, the DHHR investigated the matter and prepared its report (DHHR memorandum) drawing from a number of different documentary sources including, patient records, policy and procedure manuals, staffing schedules, log books, medical staff rules and regulations and in-service training records, incident reports, employee personnel files, closed medical records, medical staff by-laws, infection control minutes, contracted services, QA/QC committee minutes and medical staff committee documentation (surgery, tissue, credentials, peer review, executive, medicine, and surgery, neurosurgery and treatment room). In addition, the DHHR interviewed the director, director of nursing, department heads (surgery and treatment room), QA/QC coordinator(s), infection control officer and a social worker. The DHHR memorandum reflects that the four patients named by Sweeney had undergone neurosurgery at Emory in 1992 and had suffered "nosocomial surgical wound infections." The DHHR memorandum also noted that two of these patients had their surgeries the same week as Sweeney.


After outlining these initial findings, the DHHR memorandum addressed at length an investigation performed internally by Emory's infection control and quality assurance committees prior to the DHHR investigation. The DHHR memorandum confirmed an unusually high rate of nosocomial infections in the neurosurgery department during the period in question and attributed the high infection rate to "intraoperative" sources. The DHHR memorandum reflects several factors that may have contributed to the infection rate, including
concer

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