Sentinel event policy changed, but it's still a 'lawsuit kit' for attorneys
Policy still threatens providers, leaves risk managers to make decisions
Aggressive action by the American Society for Healthcare Risk Management has convinced theJoint Commission on Accredi-tation of Healthcare Organizations (JCAHO) to make changes in the controversial sentinel event policy that may make it less of a "lawsuit kit" for plaintiffs' attorneys, as some risk managers have described it. But even though the changes may lessen the liability risk, JCAHO refused ASHRM's request to suspend the sentinel event policy until it could be entirely revamped. The policy goes into effect the first of this month, and ASHRM leaders are expressing great concern about how it will increase liability risks.
Risk managers fear that the sentinel event policy essentially will force health care providers to gather all the data on a potentially litigious event, describe in great detail how they were at fault in allowing the adverse event to take place, and then make all that information legally accessible to plaintiffs' attorneys. All the attorney would have to do is obtain the sentinel event reports and show a jury that the hospital admitted fault. And as the sentinel event policy is written, the hospital practically has no choice but to admit fault in some way. One risk manager tells Healthcare Risk Management that "it's like handing the attorney a lawsuit kit and saying, `Here's what we did wrong. Now sue us.'"
The concern from risk managers prompted ASHRM leaders to work closely with the American Hospital Association (AHA) and the Asso-ciation of American Medical Colleges (AAMC) in trying to persuade JCAHO to suspend the sentinel event policy until major changes could be made. The policy enables the Joint Commission to require a report on a particularly egregious error that suggests there may be a systemic problem threatening the health and safety of patients. The facility must report on the error, why it happened, and how it will correct the systemic error. In some cases, JCAHO will put the organization on "accreditation watch," meaning its accreditation is threatened, until the matter is resolved.
Though the Joint Commission refused to suspend the sentinel event policy, it did agree to these "procedural changes" requested by ASHRM, the AHA, and the AAMC:
· Self-reported sentinel events need not contain patient or caregiver identifier information.
· Health organizations will submit two separate reports to the Joint Commission - the root cause analysis and the risk reduction plan. Previously, that information was to be provided all in one report. This change was made to facilitate rapid return of the root cause analysis to the health care organization, which is crucial because the root cause analysis can be the most damaging information in a lawsuit.
Pandora's box redux
Once data are abstracted for entry into the Joint Commission's sentinel event database, the root cause analysis will be returned to the provider. In situations in which the root cause analysis must be considered by JCAHO's accreditation committee, all copies of it will be destroyed once the committee has completed its review.
In addition, JCAHO announced that it is preparing a more detailed definition of what makes a sentinel event reportable. It also is setting up a hotline to provide consistent responses to questions regarding sentinel events and will review ASHRM's concerns that the 30-day requirement for a root cause analysis and the $3,500 fee for an on-site consultation to help with the analysis are unreasonable.
Those changes are a welcome improvement to the policy, but they do not solve the problem risk managers face, says ASHRM president Leilani Kicklighter, RN, ARM, MBA, DASHRM, assistant administrator for safety and risk management with the North Broward Hospital District in Fort Lauderdale, FL. Even if the root cause analysis is returned to the provider and the Joint Commission's copies are destroyed, there still is ample opportunity for the information to get into the hands of attorneys, she says.
"We don't see the changes as diminishing the increased liability risk very much," she tells HRM. "They can return the root cause analysis to us, but while they have it, there is no protection. In some states, the confidentiality statute may make it so that once the information leaves your organization, the confidentiality is gone. So even if they return it, if someone then asks you for that information, you couldn't refuse to give it to them."
That would be the case only in certain states with laws that affect confidentiality protections in that way. The state variability is one reason ASHRM wants the sentinel event policy suspended and overhauled rather than simply changed in minor ways, Kicklighter says.
"There's no one issue that would fix everything," she explains. "There are some things that need to be tweaked, but we need to take the entire policy in its totality instead of addressing individual parts."
The ASHRM president says she is pleased with the working relationship that has developed with the Joint Commission, and she expects the discussions to continue in a productive manner. Suspending the sentinel event policy so major changes can be made is "not at all a dead issue at this point," she says. ASHRM has lofty goals when it comes to changing the policy. The group recently released a position statement that outlines a list of necessary changes. (See box, p. 46, for a summary of ASHRM's position.)
If the sentinel event policy poses a threat to confidentiality and increases liability risk, what should a risk manager do if a sentinel event occurs before all of this is ironed out? In its official position statement, ASHRM says: "ASHRM encourages all accredited organizations to carefully consider the risks and benefits of complying with JCAHO's sentinel event reporting system." Kicklighter is hesitant to elaborate on those words of caution, saying each institution will have to make an individualized decision about the ramifications of providing the information required by the policy.
As for self-reporting, she says, "JCAHO says that if you self-report and follow through with a thorough and credible root cause analysis, it's to your advantage. We don't see any reason to doubt that statement."
But risk managers still are left wondering what to do if, heaven forbid, they have a sentinel event to deal with before all of the arguments and negotiations lead to firm answers about the implications of complying. All of the experts consulted by HRM emphasize that any health care facility with a sentinel event, or a possible sentinel event, will have to make some individualized decisions about how to proceed. There is no single answer regarding whether or how you should comply with the Joint Commission's policy.
Not all states offer protection
Among the factors to consider are state laws applying to confidentiality and discoverability, says Grena Porto, RN, MS, DASHRM, director of risk management and loss prevention insurance services with VHA East in Berwyn, PA, and president-elect of ASHRM. Some states provide much more protection than others, in which complying with the sentinel event policy would have the effect of publicizing the information.
Also, risk managers must consider the potential for litigation and how much the organization is willing to risk in going against JCAHO's expectations. "As far as the external reporting requirements, I recommend that you have to make a decision to comply or not on a case-by-case basis," Porto says. "That will be a totally individual decision, having to do with what the institution considers most important."
To report or not to report . . . .
One of the first decisions will be whether to self-report a potential sentinel event. That may be the easiest decision to make, says Jane M. Bryant, MHSA, FASHRM, director of risk management at Greenville (SC) Hospital System. But be careful, she cautions: It is an important decision.
"When you make that decision, you have to ask whether your organization understands what that means, and whether you're willing to accept that," Bryant says. "If you say, `No, we won't self-report,' are you comfortable with what that means about possibly being placed on accreditation watch later?"
Like most other decisions regarding sentinel events, whether to self-report probably should be made on a case-by-case basis rather than through a blanket policy, Bryant says. The decision may be easy in some cases, in which you can safely assume the Joint Commission will hear about the event even if you don't self-report. If the event is attracting media attention or the patient is talking about a lawsuit, you probably should take advantage of the benefits of self-reporting.
But if it seems there is little chance JCAHO would find out about an occurrence that could be considered a sentinel event, Porto suggests you might want to keep quiet. "Hypothetically, if I have a sentinel event tomorrow, and it's not in the press, and I don't think the patient will report it because I'm handling it in a satisfactory way, I might not report it to the Joint Commission because the chance they will find out is very low," Porto says. "On the other hand, I might decide that the chance of litigation is very low, and our root cause analysis wouldn't include any real admissions, so we wouldn't lose anything by reporting it."
The decisions get more difficult once you're involved in the sentinel event process and the Joint Commission expects you to provide a root cause analysis as part of the investigation. If you decide the information required in that analysis is potentially damaging to your defense of litigation and that your state laws make the information accessible to the public, you have a real dilemma.
"You have to decide if that's a risk you want to take, and it won't be an easy decision," Porto says. "You might be faced with the very serious consequences of releasing that information vs. the threat of losing your accreditation."
In that situation, Porto and Bryant say, it would be reasonable to consider the option of just ignoring JCAHO's sentinel event policy and risking the loss of your accreditation. They do not necessarily recommend that option, but they note that some facilities have decided that Joint Commission accreditation is not an absolute necessity. Either way, they emphasize that you definitely should go through the internal analysis recommended by the Joint Commission in response to a sentinel event. A thorough root cause analysis is just good risk management you should have been doing all along; the fact that JCAHO wants to see it as a compliance measure does not diminish its value. And it positions you well if JCAHO does get wind of your sentinel event and starts asking for information. You've already got the investigation under way or completed.
Bryant notes that many questions regarding the sentinel event policy - and the best way to deal with it in the real world - will not be answered until a few hapless facilities go through the process in the next few months. Even then, she predicts a rocky road ahead for everyone.
"I have seen some questionable policies debated and then ultimately accepted, but I think this one is going to have a hard time reaching acceptance," she says. "I can't put my finger on why, but this thing just hasn't felt right from the beginning."
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