EXECUTIVE SUMMARY
Peer-to-peer hospital reviews could help improve quality, but the idea carries some risks. Confidentiality and discoverability are key concerns.
- Hospital professionals would visit other facilities to assess quality and compliance.
- The resulting report would be confidential and nonbinding.
- Legal issues could hamper the startup of such an arrangement.
Peer-to-peer hospital reviews have been proposed as a way to gauge quality and compliance without waiting for the hassle and the potential ramifications of an accreditation survey, but risk managers should carefully consider the potential problems that could arise. Liability issues could make it difficult to implement such a plan.
Risk managers would be responsible for studying federal and state statutes and regulations, as well as good business practices, before consenting to such a plan, says R. Stephen Trosty, JD, MHA, ARM, CPHRM, president of Risk Management Consulting in Haslett, MI, and a past president of the American Society for Healthcare Risk Management (ASHRM) in Chicago. The concept may offer many potential benefits that would encourage hospital leaders to get on board with what seems like an innovative approach, he says, but it is up to risk managers to assess the downside.
Originating with the nuclear power industry, peer-to-peer reviews have been suggested for hospitals recently by some leaders in healthcare quality and safety, including a Wall Street Journal blog by Peter Pronovost, MD, PhD, John Hopkins Medicine senior vice president and director of the Johns Hopkins Armstrong Institute for Patient Safety and Quality.
“In peer-to-peer, a team of reviewers — executives, managers, front line clinicians, researchers, and others — visit another hospital for a structured, confidential, and non-punitive review of its safety and quality efforts. While it would be foolhardy to show your flaws to regulators, in peer-to-peer assessments it is encouraged,” Pronovost wrote. “The goal is to create an environment of learning, not judging, for both sides. The organization being reviewed discusses its weaknesses, while highlighting its successes, which can then be shared more broadly.”
True peer-to-peer reviews on a hospitalwide basis apparently have not been performed yet by any facilities, but The Johns Hopkins Hospital used a limited peer-to-peer approach when it brought in a team from Massachusetts General Hospital for a review of catheter-related bloodstream infections in ICUs and sent its own team to review the work in Boston. (Pronovost’s blog is available online at: http://on.wsj.com/2oNDYBb.)
Trosty says hospitalwide peer-to-peer reviews are worth considering even though the execution could be challenging. Failure to thoroughly consider the legal issues could turn a well-meaning quality improvement initiative into a serious liability for the hospital.
“I do have to say that, conceptually, I like this idea and can see where there might be some real benefits. It is the sort of peer review that often can do a lot of good, but also present a variety of actual and potential problems that should be addressed and resolved prior to any agreement being entered into,” he says. “It should be the role of the risk manager to help identify and research these issues and concerns, and then provide a response to hospital administration.”
HIPAA compliance is one of the first hurdles. A peer-to-peer review mostly likely would involve the review of clinical or other information that contains patient-specific data, so one must decide if HIPAA would preclude this type of examination since it clearly would not be for a clinical purpose or a need-to-know basis.
“The question is whether or not this would or could fall under the exception for recognized internal peer review activities and assessments by JCAHO [The Joint Commission] and Medicare, as well as sharing information with insurance companies,” Trosty says. “While we could presume this issue was evaluated and answered in the positive by Johns Hopkins and Massachusetts General before they did the peer-to-peer hospital review, I would want to do my own evaluation and talk with our hospital attorney before making a decision.”
The same would apply to the issue of confidentiality and privacy from a state law perspective, he says. Risk managers must determine if it is a violation of patient confidentiality and privacy to allow a review of clinical and peer review records that might contain patient-specific information.
“Then there is the issue of potential discoverability of whatever information is shared with the team from the other hospital, especially as it relates to problems or concerns had by the hospital. Could the members of the other hospital be compelled to provide information in a medical malpractice action about what they might have learned is a self-identified problem by the hospital and it relates to the injury or claim that is the basis of the malpractice action?” Trosty asks. “Would this information be protected from discovery by the laws of the particular state as it relates to protections for peer review information?”
The potential discoverability might be affected by who requests the peer-to-peer hospital review, Trosty says. Should it be requested by the hospital attorney to try to get it protected as part of attorney-client work product? This likely would be state-specific, dependent on whether this activity and resulting report would be included in this specific protection.
There is a potential antitrust issue, especially as it relates to the hospital with whom you enter into the review agreement, Trosty says.
“Is it a potential competitor that might be interested in purchasing your hospital? Is it part of a hospital system, or even a larger hospital in another community or state that might be looking to expand into your area through acquisitions?” he says. “Some of these issues should be researched both in terms of the specific hospital with whom you might want to agree to do the services, as well as the antitrust laws that apply to your particular situation.”
Risk managers also should investigate whether these activities would comply with what is set forth in the medical staff bylaws, and if not, if any amendments or additions might be required or appropriate, Trosty says. It would be important to have the medical staff on board so that they do not put up roadblocks out of concern with the use of possible results from the review, he says.
Particularly with physicians, it would have to be understood that the review itself would be nonpunitive, unlike an accreditation or compliance survey, but that the hospital would take corrective action when appropriate, Trosty says. Otherwise, the peer-to-peer review could reveal significant malfeasance or poor performance and be unable to address it. This should be allowed and provided for in the bylaws, he says.
One of the biggest concerns would be ensuring that whatever negative or potentially negative information is uncovered during the review will be kept strictly confidential by the other hospital and its personnel, Trosty says.
“It must be clearly and emphatically understood that no information obtained during the review can be shared with any other entity, organization, or individual without the written consent of the hospital being reviewed. There has to exist this trust if the review is to be effective and fair,” Trosty says. “I think it is important that this be understood by all concerned and involved parties, although it will not likely be the responsibility of the risk manager to do this. However, it should be made certain that all involved persons are aware of this.”
SOURCE
- R. Stephen Trosty, JD, MHA, CPHRM, President, Risk Management Consulting, Haslett, MI. Telephone: (517) 449-1285. Email: [email protected].
Peer-to-peer hospital reviews have been proposed as a way to gauge quality and compliance without waiting for the hassle and the potential ramifications of an accreditation survey, but risk managers should carefully consider the potential problems that could arise.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content