The Patient Safety Act of 2005 establishes a legal privilege for certain patient safety information. Under the Act, patient safety work product is defined as any data, reports, records, memoranda, or analyses that identify or constitute the deliberations or analysis of patient safety events and that are assembled or developed by a provider for reporting to a patient safety organization (42 U.S.C. § 299b-21(7)(A)).

The Act establishes a legal privilege for patient safety work product, which protects it from discovery, subpoena, or admission into evidence in any civil, criminal, or administrative proceeding (42 U.S.C. § 299b-22(a)). The privilege is designed to encourage healthcare providers to report and analyze patient safety events without fear of reprisal or liability and to facilitate the sharing of patient safety information among healthcare providers and patient safety organizations (Agency for Healthcare Research and Quality, n.d.).

It is worth noting that the legal privilege established by the Patient Safety Act is not absolute, and there are certain circumstances under which patient safety work products may be disclosed (42 U.S.C. § 299b-22(b)). Therefore, all healthcare risk managers and executives must understand the pitfalls when the Act does not provide privilege. Those pitfall areas include failure to use a Patient Safety Evaluation System to maintain documentation, the use of emails that contain privileged information, the work product not correctly identified with a privileged notification statement, and a host of other areas that need specialized expertise and experience to navigate.