The Oklahoma Bar Journal September 2025

prepared for internal quality assurance and risk management purposes and are, thus, potentially privileged or protected. In Oklahoma, do not hold your breath, but there is no specific Oklahoma Supreme Court or Oklahoma Court of Civil Appeals decision regarding the discovery of incident reports in a medical malpractice lawsuit. However, the Oklahoma Supreme Court has provided guidance on when investigation reports can be dis coverable or privileged. 25 In Hall , the court analyzed the distinction between investigations done in the ordinary course of business or in anticipation of litigation. 26 Without getting into the weeds of the entire opinion, the court basically held that if an investiga tive report was done during the ordinary course of business, it can be discoverable, whereas an inves tigative report prepared in antic ipation of litigation or trial may

not be discoverable. 27 The court provided a more in-depth analysis on this topic and cited opinions 28 from other jurisdictions to support its opinion; therefore, before a party seeks incident or investigative reports, they should read this case, along with the case citations, to become familiar with arguments related to incident reports. In addition to the Hall opinion, the peer review statute can pro vide arguments on the discovery or privilege of incident reports. A plaintiff can argue that the peer review statute specifically carves out an exception for incident reports and factual statements. 29 However, the statute does not specifically define an incident report, and a defendant health care provider can argue that the incident report was created as part of the peer review process and is privileged. 30 As such, the plaintiff should send an interrogatory ask ing whether an investigation was

need to study the credentialing and peer review statute carefully and approach discovery strategically to craft precise requests that meet the standards for production of creden tialing files. In medical malpractice litiga tion, access to internal hospital documents – particularly incident or investigation reports – can be essential to a plaintiff’s ability to establish liability. Incident reports, often generated shortly after an adverse medical event, may con tain firsthand observations, fac tual descriptions and sometimes admissions of error. These reports can include specific summaries of the medical care at issue that are done shortly after the unexpected event and may contain information not included in a patient’s medical record. For defendant health care providers, however, these reports are viewed as sensitive documents INCIDENT REPORTS

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL