Joint Commission standards cited by lawyer? Rebut allegations

Joint Commission standards cited by lawyer? Rebut allegations

It is not uncommon for plaintiffs in malpractice cases to cite The Joint Commission (TJC) standards as a source of evidence of the standard of care. However, merely citing the standards is generally not sufficient to establish the standard of care, says Victoria L. Vance, JD, an attorney at Tucker Ellis in Cleveland, OH.

"Moreover, The Joint Commission standards are not considered irrefutable evidence," says Vance. "The healthcare provider defendant has several defense strategies to rebut the applicability of The Joint Commission standards."

TJC standards for patient restraints, precautions for equipment and room accommodations in behavioral health units, credentialing standards for members of the medical staff, the proper disposition of pathology specimens, and standards for record retention have been cited in a wide variety of medical malpractice or negligent credentialing cases. "In those cases, some courts have recognized that The Joint Commission standards may be one source of evidence of the standard of care," says Vance. (See related story, p. 66, on whether The Joint Commission survey results are discoverable.)

Here are some recent cases which have cited TJC standards:

• In a 2013 case, the plaintiff alleged that an elderly patient was not properly supervised, fell while unattended, and sustained a head injury that ultimately led to her death.¹ The plaintiff’s nursing expert submitted an affidavit in which she cited the 2009 TJC hospital national patient safety goals (NPSGs) and elements of performance (EPs) to support her opinion that the defendant hospital violated the applicable standard of care by not using a monitoring device such as a bed alarm.

"The trial court agreed that the expert’s affidavit raised a legitimate question of fact as to whether the standard of care requires use of a bed alarm, and thus denied the hospital’s motion for summary judgment," says Vance.

• In a 2012 case, the plaintiff sued for alleged failure of the defendants to treat, protect and care for the patient prior to his suicide.² The patient was found hanged from a piece of PVC piping, which was serving as a shower rod in his hospital room. Plaintiffs alleged that the piping was out of compliance with TJC standards and that the defendants’ conduct was reckless, which is a higher standard that was required to be established in a case against the state to overcome a statutory immunity for state actors.

"In this case, the court held that the violation of The Joint Commission standard was not sufficiently reckless’ to support the plaintiff’s claim," says Vance.

• In a 2011 case, the patient’s mother brought a medical malpractice action against a hospital and several defendants for massive injuries and death sustained by the patient following a bilateral lumbar laminectomy and discectomy on the patient.³ During the surgery, the orthopedic surgeon transected the patient’s internal iliac artery, failed to recognize that he had done so, and thus failed to repair the artery prior to closing. The patient suffered massive internal hemorrhaging that led to cardiac arrest and death.

"The lawsuit alleged that the hospital had a duty to follow Joint Commission standards for credentialing physicians," says Vance.

The plaintiff’s expert opined that if the hospital had denied or revoked the surgeon’s surgical credentials, in all reasonable medical probability, a more competent surgeon would have operated on the patient, her artery would not have been severed, and she would not have died.

"The hospital challenged the sufficiency of the expert reports and filed a motion to dismiss the case," says Vance. "The trial court ruled that the plaintiff’s experts’ reports were sufficient to establish that the plaintiffs’ claims had merit. It denied the hospital’s motion, and allowed the case to proceed."

One court referred to TJC documents as "national standards."¹ Another court stated that the standard of care of a healthcare facility "is generally defined by [The Joint Commission] standards and the hospital’s bylaws."⁴ "But the standards, alone, are not sufficient or indisputable evidence of the standard of care," says Vance.

She encourages defense attorneys to aggressively challenge and rebut the application of TJC standards in their cases, especially when plaintiffs seek to apply hospital-based standards to a physician defendant. Below are some arguments that can be used to dispute TJC standards in a medical malpractice case:

• The standards are merely expressions of a private body and not necessarily binding on the defendant.

"The standards themselves are the expressions of a third-party organization," says Vance. "Thus, they constitute a form of hearsay evidence, which is generally not admissible in a court of law."

• The standards are often too general and subject to interpretation.

"The standards do not speak for themselves," says Vance. "The plaintiff must also offer a witness to explain and apply the standards to the facts of the case."

Defense counsel then has an opportunity to cross examine that expert on his lack of knowledge and familiarity with TJC standards and survey practices. "Some courts have excluded references to The Joint Commission standards if the plaintiff could not effectively relate the standards to the facts of the case," says Vance.⁵

• The standards arguably apply only to hospitals.

Many TJC standards, by their terms, apply only to hospitals. TJC has a voluntary program for accreditation of office-based surgical practices that meet specified criteria.

"But if the practice is ineligible for, or elects not to participate in the accreditation program, those would be additional arguments against the use of, or admissibility of those standards in an office-based medical malpractice case," says Vance.

However, some plaintiffs seek to extend the reach of the hospital-based standards to physician practitioners. "One trial court excluded any evidence of The Joint Commission standards, recognizing that the hospital standards are irrelevant to establishing the standard of care for a physician in an office-based practice," says Vance.⁶

The cited malpractice case involved a plastic surgeon who removed moles from the decedent’s back and chest and who discarded the tissue rather than submitting the specimens to a pathologist for histological or pathological examination. Two years later, the mole on the patient’s chest recurred, and by the time the patient sought medical attention, the growth was determined to be malignant melanoma, which had metastasized. The patient expired one month later.

The surgeon moved to exclude any reference to TJC standards that stated, at that time, that when tissue is removed from an individual in a hospital setting, the tissue must be sent to pathology for examination.

"The trial court agreed with the surgeon that The Joint Commission standard was irrelevant to determining the appropriate standard of care for a physician performing procedures in his office," says Vance. "This ruling was upheld on appeal."

References

1. Wierzbicki v United States, 2013 WL 1796964 (D.S.D. April 29, 2013),
2. Davenport v State of Connecticut, 2012 WL 4040348 (Conn. Super. Aug. 21, 2012),
3. Renaissance Healthcare Systems, Inc v Swan, 343 SW3d 571 (Court of Appeals, Texas, June 30, 2011
4. Riply v Lanzer, 152 Wash. App. 296 (2009).
5. Wansley ex. rel. Wansley v. ABC Ins. Co., Inc., 81 So.3d 725 (La.App.4, 2011).
6. Klein v Dietz, 1998 WL 896345 (Ohio App. 7 Dist. 1998).