Don't report, advise legal counsels nationwide
'Conditional' preferable to losing confidentiality?
Three quality improvement directors who would speak only on condition of anonymity say their attorneys have advised against reporting sentinel events to the Joint Commission. One, from a midsized Pennsylvania hospital, says, "According to our legal counsel, we should not report. Our hospital's policy states that we would investigate incidents, but not necessarily report our root-cause analyses."
The hospital's policy calls for the managers' analysis to be reviewed by legal counsel. The hospital then would follow counsel's advice on whether to submit the analysis. "Analyses contain too many implications of wrongdoing and betray patient confidentiality issues," the director says. "If a case went to court, an unfair judgment may be made based on leaked information."
She says she doesn't think nonreporting should be held against a hospital's accreditation. "If anything like a sentinel event happened, the Department of Health would be down our throats, and if they thought our doors should be closed, they'd close them. I don't think the Joint Commission should have that information. I don't think that's what they're there for. I think they've opened a can a worms that they really shouldn't be dealing with."
One New York facility revised its policy as soon as the Joint Commission's recommendation came down. "As of now," says the quality director there, "we would do a root-cause analysis internally but not report to the Joint Commission, at least until the confidentiality and privilege issues are resolved." Even with the modifications the Joint Commission has implemented, she says, it still is too risky in terms of liability and malpractice. "At this point, New York state law offers some protections for quality assurance peer review documentation in terms of malpractice/ negligence actions, which, I believe, is the rubric under which any root-cause analysis would fall."
Another hospital, this one in the Midwest, also has made the decision not to report sentinel events. The quality director there told Hospital Peer Review that because of the state's quality management peer review statutes, if managers there were to report to the Joint Commission, "we'd feel we were telling the world. Because of that threat, we have decided not to report. Of course, each decision will be made on a case-by-case basis."
Staff at the midwestern facility plan to investigate any sentinel events thoroughly and do root-cause analyses for their own purposes. They will get everything in place in terms of improvement processes in the event they are asked about an event the next time the Joint Commission comes.
"I understand that if an event hits the news, and JCAHO hears about it, comes, and you're not prepared, you may be opening yourself up for conditional accreditation," says the quality director. "But we've decided that that's preferable to losing confidentiality. Our legal counsel has advised the entire system to not report."
This quality director says the Joint Commission is trying to find ways to make things better by having hospitals learn from each other's mistakes. "But at the same time, I think they want to get on top of hospitals that have problems so they're not put in a bad light by giving out accreditation one week, then finding the next week that the very same hospital is having a sentinel event. That would be bad publicity for them."
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