Avoid disclosure: Just the facts, ma’am
With plaintiffs getting their hands on more and more documents that previously were off limits, the best way to avoid that danger is to be strict about separating fact and opinion, says Patrick J. Hurd, JD, senior counsel with the law firm of LeClairRyan in Norfolk, VA.
The facts might be discoverable for a plaintiff, so don’t mix in your thinking about how or why the incident occurred, or anything else besides what actually happened. Opinions and analysis still have more protection from prying eyes, so don’t unnecessarily give those away when you are required to hand over factual material.
"While the likes of mental impressions, conclusions, opinions, or legal theories can be redacted, you cannot assume that they will be," Hurd says. "If the purpose of an investigation is to gather facts in the wake of an incident, then the training, policies, and procedures should hew closely to that purpose, never straying into matters of conjecture or opinion."
Examples of the facts include the date of the occurrence, the diagnosis, the treatment provided, and the patient’s outcome and progress. Squelch any tendencies to jot down your thoughts about why the incident occurred, any relation to past incidents, or possible corrective action. Keep those thoughts completely separate.
A standardized form can help you collect only the facts after an incident, says Leilani Kicklighter, RN, ARM, MBA, CPHRM, LHRM, a patient safety and risk management consultant with The Kicklighter Group in Tamarac, FL, and a past president of the American Society for Healthcare Risk Management (ASHRM) in Chicago. State laws vary on requiring incident reports, and some, such as F lorida, proscribe what data must be collected. That type of form, whether prompted by state requirements or not, can be an effective strategy, she says.
"If your state does not proscribe what information you must have, you can develop an incident report form that provides the demographic information of the patient and other meaningful information like who the doctor was, where it happened, and so forth," Kicklighter says.
Risk managers also should gain a thorough understanding of how the electronic medical record can be accessed, what digital connections make that possible, and what electronic footprints are left after accessing the document.
Another important step is to ensure a clear demarcation between investigative fact-gathering and review or analysis related to opportunities for improvement of quality care and patient safety, Hurd says. "Healthcare organizations must preserve their ability to take factual information and place it in the hands of quality review organizations," he said. "This process necessarily involves evaluating, assessing, and even opining about how changes in policies, procedures, processes, training, education, and credentialing could improve patient safety and quality of care."
