The Oklahoma Bar Journal September 2025

done, whether a report was gen erated and when the defendant health care provider was in rea sonable anticipation of litigation. The plaintiff should also send a request for production seeking a copy of the investigation/incident report and request a detailed and specific privilege log if a defen dant objects to the production of the incident reports. 31 Plaintiffs should also request and be famil iar with a hospital’s policies and procedures on adverse or senti nel events 32 and investigations of unexpected outcomes. Sometimes, these policies and procedures can help with the argument of whether an investigation was done in the ordinary course of business or solely in anticipation of litigation. In Oklahoma, there is an argu ment that incident reports are not categorically privileged in medical malpractice litigation. The discover ability hinges on why and how the reports were created. If a report was produced in the ordinary course of business, it is generally discoverable. If it was prepared exclusively for litigation or the peer review process, it may be shielded. Ultimately, a fact-intensive analysis of the circum stances related to the creation of the incident report should be done to ensure privilege claims. This approach ensures that anticipation of litigation and peer review pro tections do not become a catch-all shield for critical evidence, preserv ing fairness and transparency in medical malpractice proceedings. As you walk out of the court house, your fist pump in the air quickly becomes a fist punch into the ground, knowing the daunt ing task that lies ahead in your new medical malpractice lawsuit. CONCLUSION

However, with the right prepa ration and knowledge of how to approach discovery, it can help lessen the burden of discovery and help you prosecute or defend the medical malpractice case so that you, too, can walk out of mediation or the courtroom like John Bender in The Breakfast Club with your fist held high in the air. Good luck!

physicians are providing care at its facility. This case can help with arguments regarding negligent credentialing. 16. Attorneys from both sides should also request the physician’s licensure file from the medical board. 17. 63 O.S. §1-1709.1. 18. 63 O.S. §1-1709.1(A)(5) and 63 O.S. §1-1709.1(B)(1). 19. 63 O.S. §1-1709.1(D)(1). 20. See 12 O.S. §3226(B)(5); see also 12 O.S. §3237(A)(2). 21. Peer review is a privileged process that typically involves an internal committee or health care provider that reviews and evaluates a physician’s performance to evaluate the quality of care provided to a patient. The committee will review medical records, conduct interviews and review other documents and, based on the committee’s evaluation, will provide what is known as recommendations made and actions taken related to the care and treatment that was reviewed. See 63 O.S. §1-1709.1(A)(6). 22. 63 O.S. §1-1709.1(B)(1). 23. 45 C.F.R. §60.20(a). 24. 63 O.S. §1-1709.1(A)(5)(a-f). 25. Hall v. Goodwin , 1989 OK 88, 775 P.2d 291. 26. See id . 27. See id. at ¶12. 28. See id . at ¶¶8-11. 29. 63 O.S. §1-1709.1(A)(5)(b and d). 30. 63 O.S. §1-1709.1(C). 31. See supra footnote 19. 32. Sentinel events are events that result in a patient’s death or permanent harm. See “Joint Commission Policy on Sentinel Events,” http://bit.ly/46KbW26.

ABOUT THE AUTHOR

S. Shea Bracken of Edmond focuses his practice on catastrophic injury, medical malpractice, birth injury and products

liability cases with the law firm of Maples, Nix & Diesselhorst. A native of Stillwater, he is a decorated U.S. Marine Corps veteran and served on the OBA Board of Governors from 2022 to 2024. ENDNOTES 1. Thompson v. Presbyterian , 1982 OK 87, ¶7, 652 P.2d 260, 263. 2. Jones v. Mercy Health Center, Inc ., 2006 OK 83, ¶17, 155 P.3d 9. 3. See Robinson v. Oklahoma Nephrology Associates, Inc ., 2007 OK 2, 154 P.3d 1250. 4. Helpful hint: If an attorney is not familiar with all the versions of the electronic medical record system, there are experts and companies a party can hire to assist with identifying all the specific types of electronic medical records that are available. 5. There are numerous titles for audit logs/ audit trails; therefore, when requesting, a party should request audit trails, audit logs or similarly titled documents. For purposes of this article, it will be referred to as audit logs. 6. See Gilland v. Matsuo, 2022 WL 10360434 (Conn. 2022); and Vargas v. Lee , 170 A.D.3d 1073 (N.Y. 2019). The Gilland case cites courts from other jurisdictions that have held that audit logs are relevant and discoverable. 7. 12 O.S. §3224 et seq. 8. 42 U.S.C. §1320d, et seq .; see also Holmes v. Nightingale , 2007 OK 15, 158 P.3d 1039. 9. 45 C.F.R. §164.524. 10. 45 C.F.R. §164.312. 11. See id . 12. See 12 O.S. §3226. 13. See Therrien v. Target Corp ., 617 F.3d 1242, 1256 (10th Cir. 2010). 14. See id . 15. Strubhart v. Perry Mem’l Hosp. Trust Auth ., 1995 OK 10, 903 P.2d 263 is the seminal case regarding a hospital’s duty to ensure competent

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.

46 | SEPTEMBER 2025

THE OKLAHOMA BAR JOURNAL