Claiming it could generate a hailstorm of malpractice lawsuits, hospitals across the country are rebelling against a new Joint Commission policy offering leniency in exchange for self-reporting of adverse patient incidents.
The rebellion is being led by the Federation of American Health Systems, which represents for-profit hospitals, and since has been joined by the American Hospital Association.
Officials from the Joint Commission on Accreditation of Healthcare Organizations were scheduled to respond to concerns at this week's AHA meeting in Washington. Charles Mowll, a JCAHO executive vice president, said the commission hopes five "procedural modifications . . . will go a long way in mitigating some of these concerns." (See chart, this page.)
The Joint Commission's 28-member board approved the controversial self-reporting policy unanimously at its November board meeting. At that time, the seven commissioners who represent the AHA backed the new policy, saying it's what hospitals wanted.
Now, the AHA, the federation and hospitals think differently. What triggered the change of heart is unclear.
The policy adopted in November revises existing JCAHO procedure for treating "sentinel events," which are serious adverse events leading to the death or serious injury of a patient or the potential for such.
Previously, if an adverse event occurred and the JCAHO found out about it, surveyors from the Oakbrook Terrace, Ill.-based healthcare accrediting agency would visit the hospital and investigate what happened.
The JCAHO would require the hospital to conduct a "root-cause" analysis to determine why the incident occurred and how similar problems could be avoided in the future.
Until the hospital performed the analysis and the JCAHO was satisfied with corrective actions taken, the hospital would be placed on "accreditation watch." During this probationary period, hospitals still are considered fully accredited.
From October 1996, when the accreditation watch policy was implemented, to December 1997, 35 healthcare organizations were placed on accreditation watch. Of those, 31 successfully completed the process and were removed from the list.
Under the new policy, which takes effect April 1, the Joint Commission promises that if a hospital self-reports a sentinel event within five days and completes a root-cause analysis in 30 days, it will not be placed on accreditation watch. That means the error will not be made public on inquiry to the JCAHO, as it was under the old policy (Jan. 19, p. 20).
But the policy, which seemingly would allow hospitals to conceal problems from their communities, is being criticized by hospitals and their trade groups. By voluntarily turning themselves in to the JCAHO, hospitals would be creating paperwork that malpractice attorneys could turn against them.
Hospitals argue they then will be exposed to the risk of fishing expeditions from plaintiffs' attorneys because their communications with the Joint Commission are not covered by confidentiality statutes.
Hospitals are protected under peer-review statutes from having to reveal their internal quality assurance procedures. By submitting this sensitive information to the Joint Commission, however, the hospital steps outside this protective umbrella.
"This is a disastrous turn of events," said Fred Graefe, a lawyer with Baker & Hostetler's Washington office. "It opens all the hospital records to medical malpractice lawyers."
Hospitals apparently see the potential result of policy as so disastrous, their leaders are mobilizing.
On Jan. 15, federation President Thomas Scully led a delegation of for-profit hospital executives to the Joint Commission's headquarters to discuss their concerns directly with JCAHO President Dennis O'Leary, M.D.
In a Jan. 23 letter to O'Leary, the AHA and the Association of American Medical Colleges outlined their objections to the new policy. They cited a "firestorm" of worry from hospital legal counsels.
Wayne Sinclair, senior vice president and general counsel of MMI Cos., Deerfield, Ill., a major risk management company, said the board of the American Society for Healthcare Risk Management is working on a statement against the sentinel event policy. The society is part of the AHA.
"The purpose is good," Sinclair said. But if the policy isn't changed, "either hospitals will go underground with this whole thing or stop reporting altogether."
Richard Hailey, president of the Association of Trial Lawyers of America took issue with the hospital industry's reaction to the new policy.
"Obviously, it is a problem that medical associations don't want to release information about doctors that have had complaints," he said. "Hospitals don't like to talk about medical errors. Consumers deserve to know every relevant fact about the choices they are given in our society. When there's a conscious effort to hide those facts that relate to consumer safety, it's tragic."