Root-cause dilemma: Could filing a report draw a subpoena?
Health law expert says first step is to seek legal advice
(Editor's note: This is the final part of a series on the Joint Commission's sentinel events policy. In the June issue of Homecare Quality Management, we discussed what the policy means, how reporting accidents may make a difference, and the Joint Commission's own guidelines.)
Home care agencies may find themselves in a Catch-22 once they begin the process of conducting root-cause analyses of sentinel events.
If they choose not to begin these procedures, they could lose their accreditation with the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) in Oakbrook Terrace, IL. But if they do conduct root-cause analyses, they could be opening themselves up to legal discovery subpoenas in malpractice lawsuits.
The Joint Commission revised its sentinel events policy in May, and JCAHO now requires all accredited organizations to perform root-cause analyses of any incidents involving but not limited to any patient death, paralysis, coma, or other major sentinel events. (See list of what's reportable and what's not, p. 104.)
Health care organizations also may choose to report these incidents to the Joint Commission, and then a JCAHO representative would visit the facility to review the root-cause analysis. The Joint Commission will charge facilities $3,500 for this on-site review.
"Prior to the revised policy, the Joint Commission neither encouraged or discouraged reporting of sentinel events," says Janet McIntyre, JCAHO spokeswoman. "Now we're encouraging health care facilities to let us know about these events so we can look at different strategies for preventing them."
Providers are faced with two important questions: Should they report their sentinel events to the Joint Commission? And should they conduct a root-cause analysis of any sentinel events?
"People confuse the two issues, which are what you have to do internally vs. the relationship you've had with the Joint Commission when sentinel events occur," says Patrice Spath, ART, BA, a consultant in health care quality and resource management in Forest Grove, OR.
"Most people have chosen not to voluntarily report their sentinel events to JCAHO because of confidentiality concerns," Spath adds.
But now home care providers also must decide how to handle JCAHO's requirement that they conduct a root-cause analysis after each of these sentinel events.
Again, experts offer no easy solutions. But they advise providers to proceed very cautiously, beginning with contacting their lawyers.
"The question is how much protection, if any, is given by state statutes to that information in a root-cause analysis," says Elizabeth Hogue, Esq., a health law attorney in Burtonsville, MD. Hogue represents home care providers across the country on health law issues.
"Every health care provider is facing the same question," Hogue adds. "The flip side is the Joint Commission says, 'It is our job to be vigilant and to monitor the people we accredit,' and generally we can say, yes, that's what we want JCAHO to do."
While home health agencies still debate the issue, many hospitals already have internal processes for analyzing incidents and learning from them. Alliant Health System in Louisville, KY, for instance, has always had a process for investigating incidents, says Nancy Rapp, RN, risk manager for the multispecialty health system, which has a home health agency.
"We have had a critical incident/sentinel event review process in place for a long time," Rapp says. "Identification, investigation, and management of occurrences is nothing new." (See story on how Alliant performs root-cause analyses, p. 103.)
The Joint Commission recently reassured health care providers that they do not have to put the root-cause analysis in writing if they fear that their own findings might be used against them in a civil suit.
McIntyre says the Joint Commission is addressing that concern by not requiring agencies to send documentation of their root-cause analyses to JCAHO and by saying they don't have to put their investigations on paper.
The Joint Commission's intent is that if they go into a hospital or home care agency to review the root-cause analysis, then the information would stay in the facility and be protected, says Peggy Cwik, ARM, RN, a senior health care consultant with AIG Health Care Management Services, a Chicago consulting firm for health care organizations.
"They just want to see what you've done and how to get the information," Cwik explains.
But this on-site visit does not provide sufficient legal protection, Hogue says. Even if the facts of a root-cause analysis are not written down on paper, they may have to be made available in a subpoena.
"The fact that the information is even created and given to someone else verbally may destroy attorney-client privilege and quality assurance protection," Hogue says.
All a plaintiff's attorney would have to do is interview the people who conducted the root-cause analysis. In fact, that's exactly what Joint Commission officials say they will do in the cases where root-cause analyses are conducted orally.
Hogue and other experts offer these guidelines for forming a root-cause analysis policy:
· Seek professional legal advice.
Hogue says home care providers should not fool themselves into thinking they are too small of a target for malpractice attorneys.
"That used to be the case," she says. "Nobody even knew home care providers were out there, but that honeymoon period is over, and in fact, attorneys love home care providers now."
· Check your state's statutes.
Does your state give businesses any protection from civil suit subpoenas when they conduct internal investigations into errors and problems? If not, then any type of root-cause analysis might have to be made available to malpractice attorneys during the course of discovery after an incident, Hogue says.
Attorney-client privilege might apply
For example, some states might offer confidentiality protection to any investigations conducted by an attorney as part of attorney-client privilege.
If your state offers certain types of confidentiality and privilege from discovery, then your root-cause analysis policy should be written in a way that reflects that protection.
"There are no hard-and-fast rules," Rapp says. "I would say to anyone who called from any state with regard to these issues that I'd have to check the statute in that state, and we'll try to develop a policy that provides maximum protection."
The Joint Commission has a task force that is pursuing federal legislation and model state legislation that would reinforce protections for sentinel event-related information that health care organizations may share with JCAHO.
· Decide how you will share information with JCAHO.
Any time a provider shares information with a third party, the information may be subject to legal discovery. But home care agencies have some options for how they will share this information.
They could choose to document the root-cause analysis and send it into the Joint Commission; or they could document it and have the Joint Commission visit their sites to review the report. A third option would be to conduct the investigation orally and allow a JCAHO representative to interview participants.
Again, before making a decision about which route to take, a home care provider should seek legal advice, Hogue says.
Home care providers might conduct these analyses in a way that doesn't pinpoint blame or give names of people involved. But even that might not prevent a malpractice attorney from finding out who was at fault, Hogue adds.
· Expect the process to cost money.
Besides the Joint Commission's $3,500 on-site review charge for a root-cause analysis, agencies likely will have to pay expensive legal fees.
"That's why a lot of home care agencies can't afford to get accredited: because it's so expensive," Cwik says. "At what point can you no longer afford to practice because the cost of business, to stay accredited, is too high?"
However, many health care agencies, especially ones that are based at JCAHO-accredited hospitals, cannot afford to lose their Joint Commission accreditation, Hogue says.
Hogue predicts all of the legal issues surrounding root-cause analysis procedures eventually will be settled in a courtroom.
"Ultimately, the issues are going to be litigated," she says. "This is very serious business, and the stakes are high."
[Editor's note: The Joint Commission's sentinel event hotline is available weekdays through JCAHO's Office of Quality Monitoring and can be reached at (630) 792-3700. Also, the Chicago-based American Society for Healthcare Risk Management (ASHRM) will hold an audio conference on sentinel events and risk management on Aug. 6, from 1 p.m. to 3 p.m. central time. For more information, you may contact ASHRM at (312) 422-3988 or at its Internet site: http://www.ashrm.org.]
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