JCAHO defends hospital’s right to keep it confidential
Healthcare Risk Management obtained a copy of the amicus brief filed by the Joint Commission on Accreditation of Healthcare Organizations in a West Virginia malpractice case, arguing that the defendant hospital’s root-cause analysis qualifies for protection under the state’s peer-review statute. Here are excerpts:
• "Health care organizations are reluctant to report or even fully review certain incidents because of the litigious atmosphere under which health care organizations operate which constrains their willingness to share peer review records for fear of self-indictment. This fear with respect to the Joint Commission has been alleviated in part by judicial holdings and statutory provisions specifically providing that records disclosed to, and of, the Joint Commission will remain confidential. If this confidentiality is threatened, as it would be by disclosure of peer-review records to Plaintiffs, it would chill the candor of those participating in the peer review process and might cause health care organizations to limit drastically their use of peer review committees. . . . Moreover, any [West Virginia] decision invading the confidentiality of a root-cause analysis and, by extension, the peer review process, will become known to health care organizations in other jurisdictions and would chill the candor of those participating in the peer review process, thus adversely impacting upon the health and safety of patients in the remainder of the country as well.
• The levels of [root-cause] analysis described above, when performed in response to the occurrence of a sentinel event, constitute peer review. A root-cause analysis committee or other hospital committee does not perform peer review when it monitors the performance of processes that involve risks or may result in sentinel events. This type of ongoing review is recommended by the Joint Commission, but it does not require submission of such information by health care organizations. Only the former constitutes the activities of a review organization engaging in peer review and the information generated by such organizations is confidential under West Virginia law.
• The [West Virginia] Peer Review Act, §30-3C-1 et seq., provides, in relevant part: "Peer review organization" means any committee or organization engaging in peer review . . . Peer review’ means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals. . . .
There can be no question the hospital committee that performed the root-cause analysis in the instant case was: 1) a committee; and 2) evaluated the quality and efficiency of the services provided to Heather Allen [the plaintiff].
The first part of this analysis is simple. The Act broadly defines "review organization" to include any committee or organization. The hospital root-cause analysis committee certainly qualifies. The next part of the analysis is whether the committee engaged in peer review. The answer to that question, under the definition set forth in the act, the definition provided by the West Virginia courts, the definitions adopted by the legislatures and courts of other states and the commonly accepted definition of peer review, is indisputably in the affirmative.
Analysis of root-cause analysis
A breakdown of the Act’s statutory language reveals that the performance of a root-cause analysis constitutes peer review. First, a root-cause analysis is a "procedure for evaluation" of "services ordered or performed by . . . health care professionals." A sentinel event, even in the cases of patient rape or infant abduction, involves the actions of a health care professional with respect to the safety and welfare of his or her patient. The root-cause analysis evaluates: 1) what happened; 2) why did it happen; and 3) what were the most proximate factors. See Exhibit B. The "quality" of the services is at issue because the outcome was necessarily adverse. The "efficiency" of such services is an important point of the root-cause analysis. The analysis seeks to identify "changes which could be made in systems and processes — either through redesign or redevelopment of new systems or processes — that would reduce the risk of such events occurring in the future."
• Plaintiffs’ assertion that the purpose of a root-cause analysis is general risk management and not peer review is misguided. Risk management contemplates a general review of procedures. A root-cause analysis, however, is performed only following a sentinel event and is, at its core, a review of a specific adverse occurrence. It looks first and foremost at the event itself and the actions or inactions of the attending health care professionals. It also examines the actions of related health care professionals and the healthcare organization as a whole. A root-cause analysis committee may conclude that an individual health care professional was strictly at fault for a sentinel event or that a more systemic cause played a role. The purpose of peer review need not always be to assign blame for an occurrence, but can and should be directed towards preventing future adverse occurrences. This is the sine qua non of a root-cause analysis.
There should be no question that the actions of the hospital in performing a root-cause analysis pursuant to Joint Commission standards were "peer review" and thus protected under the Peer Review Act.
• In State ex rel. Charles Town Hosp. v. Sanders, 210 W.Va. 118, 556 S.E.2d 85, 93 (2001), the court expanded the information protected by the act to include documents not originated by a review organization but created for such organizations. The court held that the act clearly evinced a "public policy encouraging health care professionals to monitor the competency and professional conduct of their peers in order to safeguard and improve the quality of patient care." (Sanders, 556 S.E.2d at 93.)
• Plaintiffs argue that the hospital committee is not a review organization because it is allegedly not composed entirely of health care professionals. Although the hospital ably responds to this contention, the holding in Sanders provides additional evidence that such an assertion is untenable. The Sanders court held that a document created by a noncommittee member is protected by the act (556 S.E.2d at 93). In light of this holding, it is not likely that the existence of nonhealth care professionals on a root-cause analysis committee would be sufficient to eliminate the otherwise valid protection provided by the act.
• Plaintiffs also allege that because information associated with the root-cause analysis was to be disseminated to other, possibly nonpeer review, committees, including the Joint Commission, the information is not privileged. This proposition was specifically rejected by the Shroades court. The court held that "[m]aterial that originates in a review organization remains privileged even if held by a nonreview organization." (Shroades, 421 S.E.2d at 269.) Clearly, the court foresaw that peer-review information might be disseminated to other committees in the hospital. In fact, the whole purpose of peer review would be lost if a peer review committee could not communicate its findings and conclusions to others in the hospital in an attempt to implement corrective actions.
• In their response, plaintiffs assert that the policies of the Joint Commission with respect to the submission of a root-cause analysis by health care organizations rebut the hospital’s claim that the root-cause analysis is protected by the Peer Review Act. This is simply not true. First, as noted above, the Joint Commission considers the confidentiality of the root-cause analysis process to be vital to the Joint Commission’s mission to improve the quality and safety of health care. Any erosion of the confidentiality protections afforded to a root-cause analysis would undoubtedly chill the candor of the participants in the process and have severe consequences to health care throughout the country.
• However, the Joint Commission recognizes the variety in the peer review statutes of the states and the need for certainty on the part of a health care organization. It is impossible for the Joint Commission to affirmatively state that a root-cause analysis will never be held to be discoverable in every court in the country. Even in states that appear to have a broad peer review statute (such as West Virginia), plaintiffs (such as those in the instant case) will attempt to obtain discovery of confidential documents. Because of the need for certainty in this area, the Joint Commission is currently seeking a federal statute that explicitly guarantees the confidentiality of a root-cause analysis and other peer review materials. The enactment of such a statute will eliminate the types of actions such as the one before this court.
• The Joint Commission has never received a request from a health care organization in West Virginia for utilization of Alternative 4 [the reporting option that hospitals may use if they fear reporting the RCA to the Joint Commission would constitute waiving the peer review privilege under state laws]. The hospital did not seek this alternative method of submission and thus clearly believed that the information was privileged even prior to the inception of this litigation. Moreover, of health care organizations across the country, only a very small percentage chooses to use Alternative 4.
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