Sentinel events: JCAHO, societies go head to head
Confidentiality is at center of firestorm
You probably received a letter from Dennis L. O'Leary, MD, president of the Joint Commission on Accreditation of Healthcare Organizations in Oakbrook Terrace, IL, earlier this year advising accredited facilities of changes to JCAHO's sentinel event policy. (See related article on just what those changes are, p. 87.)
The revision went into effect on April 1 despite objections by the American Hospital Association (AHA), the Association of American Medical Colleges (AAMC), the American Society for Healthcare Risk Management, and others. At a meeting in mid-February, principals at the Joint Commission considered requests to suspend the policy until issues surrounding confidentiality and other matters could be settled, but then went ahead and reaffirmed the policy instatement. The body did, however, approve an initiative to explore, on a state-by-state basis, ways in which legal confidentiality of sensitive information can be enhanced.
"Don't just swat the mosquitoes; drain the swamp," says Kevin Hickey, MSA, associate director of the Joint Commission's accreditation services department. That sums up the agency's sentinel event policy mission: It is meant to be an incentive for hospitals to self-report medical errors. JCAHO wants health care organizations to learn about the relative frequencies and underlying causes of sentinel events so lessons learned can be shared and the risk of future occurrences reduced. But there is growing concern that such sharing may inadvertently make sensitive information available for use in medical malpractice cases. It is feared that when organizations share root-cause analyses (RCAs) with the Joint Commission, that information may no longer be protected by statutes that guard the confidentiality of peer review information.
Individual state laws and some case law currently determine the protection of such information, but confidentiality protections vary dramatically. For example, in Illinois they are substantial. That state's Supreme Court has specifically ruled that the Illinois Medical Studies Act protects from discovery and subpoena all communications between hospitals and the Joint Commission. Other states have very weak protections.
Some attorneys put it this way: You have to choose between losing accreditation if you don't release privileged information, or exposing yourself to liability if you do. You have to weigh the risk of disclosure and its consequences.
Nancy E. Richman, PhD, quality manager at Kewanee (IL) Hospital, says it's important for hospitals to have a system in place to investigate important unexpected outcomes, but she's not sure the Joint Commission ought to be involved in the process.
"But if it serves to encourage hospitals to put a good process in place," she says, "it's a good thing." Richman and Kewanee Hospital's chief nursing officer wrote a policy regarding sentinel events that's in accordance with the Joint Commission's standards. (See Kewanee Hospital's policy, inserted in this issue.) "The policy formalizes what's already being done here in the event of a significant variance," she says. "Hospitals that are still in a quality assurance model rather than a quality improvement model may find the Joint Commission's revised policy more jarring to implement, but it won't change what we do here much."
Allow counsel to direct investigations
At Pascack Valley Hospital in Westwood, NJ, the risk management plan covers serious events and provides for immediate investigations so as to avoid future occurrences. But that investigation is protected by attorney-client privilege, explains Mary Jane A. Shevlin, MA, CPHQ, director of quality improvement, utilization, and risk management there.
Shevlin's advice: "Protect your investigation under attorney-client privilege. Involve legal counsel from the very beginning of any investigation of any sentinel event." Pascack Valley's attorneys advise them to protect all investigations of serious incidents by having legal counsel direct them. The attorney takes it every step of the way. It becomes the attorney's work product, and it's protected by attorney-client privilege.
This way, the medical staff know they are protected when they come forward with information on an event. "They should know that," she says, "because why else would they tell us about the event and supply details? Why should they participate in our peer review investigations?"
Shevlin suggests hospitals consult with counsel before sending any information on to the Joint Commission. "It can be suicidal for a hospital," she says. When the information goes from your facility to the Joint Commission, confidentiality protections are lost. If there's a pending suit based on a sentinel event, and the plaintiff's attorney knows those facts are reportable to the Joint Commission, he can subpoena the records. The RCA would prove invaluable to plaintiff's attorney because it identifies proximate cause. "The facility is handing the cause-and-effect relationship of the event to the plaintiff's attorney," says Shevlin. "And what's worse, you've committed to its veracity."
Groups mount dissenting response
Shevlin says she thinks the Joint Commission will probably back off soon from some of the language in its policy. Strong interest groups are writing position papers stating the policy's impact on the organizations, especially in states with statutes offering little or no protection of peer review information.
Richard J. Davidson, president of the AHA, and Jordan J. Cohen, MD, president of the AAMC, wrote to O'Leary in January stating that members of those organizations and their state hospital associations had expressed concern that the sentinel event policy poses serious legal and confidentiality problems. They also expressed concerns that definitions are too broad and that required documents contain language that is self-incriminating. The organizations urged the Joint Commission to suspend the policy until issues are resolved. They made the following recommendations, some of which have been acted upon:
· Provide alternatives for organizations to communicate information from their RCAs to the Joint Commission - by phone, for example, followed by on-site reviews. No fees should be attached.
· Ensure that all documentation be devoid of patient or practitioner identifiers.
· Create a system for the storage and destruction of records that will assure that no submitted materials are released to a third party.
· Develop a policy for handling and treating the information that makes clear that the information is received in connection with internal hospital QA activities and shall be subject to confidentiality provisions of state laws.
· The Joint Commission should explicitly commit to:
- move immediately to resist any subpoena initiated to obtain information;
- report immediately to the hospital when a third party requests information;
- work with the hospital's counsel to assist in the defense.
The AHA and AAMC went on to say that without such protections, "the Joint Commission's mission of achieving a 'public good' will be seriously eroded."
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