A New Jersey court has ordered a hospital to turn over to the plaintiffs in a wrongful death suit the fiercely guarded root-cause analysis that is required by the Joint Commission on Accreditation of Healthcare Organizations-alarming industry officials who fear it could set a dangerous precedent.
The underlying decision is unpublished and not binding on other courts, but it could be persuasive in a state where the "legal privilege of self-critical analysis" exists merely in case law, not by statute.
"This is precisely the type of ruling that could dampen the voluntary reporting of adverse outcomes to agencies like the Joint Commission and others," said Ron Czajkowski, a spokesman for the New Jersey Hospital Association. "New Jersey is one of a few states in the country whose hospitals don't have discoverability protection of such reports, so opening these doors could prompt a lawyers' feeding frenzy."
The case involves a medical malpractice and wrongful death suit brought against 173-bed Meadowlands Hospital Medical Center, Secaucus, by the estate of Debbie Reyes, who died during an apparently routine gall bladder operation in August 1998. During the discovery process earlier this year, Meadowlands sought a protective order in Superior Court, Hudson County, to keep its confidential root-cause analysis out of the hands of the plaintiff's attorneys. The lower court denied the motion on March 30, and then on June 8, the state appeals court declined to hear the hospital's appeal.
"(Reyes) went in for garden-variety gall bladder surgery; she came out dead. It's just not supposed to happen today. What went wrong and why? The hospital certainly should be asking those questions," said plaintiff lawyer Michael Maggiano, a senior partner with Maggiano, DiGirolamo & Lizzi, Fort Lee, N.J.
Citing the ongoing litigation, officials at Jersey City-based Liberty Healthcare System, Meadowland's parent, would not comment. The hospital has 15 days to decide whether to ask the state Supreme Court to hear the case.
The case touches a nerve with the Joint Commission, which put the sentinel event policy in place in 1995 amid hospitals' fears that the root-cause analysis ultimately could come back to bite them in litigation. But the Joint Commission insists that the goal is to uncover system errors, not human errors, and that it is sharing information with hospitals to prevent similar occurrences in the future. All shared information is kept strictly confidential between the Joint Commission and the hospital. In fact, the JCAHO said it destroys its copies once the review is completed.
"The critical point to understand is that the (New Jersey) decision had nothing to do with the sharing of information with the Joint Commission. It had to do with New Jersey peer review law," said Harold Bressler, the Joint Commission's general counsel.
Bressler said this case is the only tort liability action he is aware of in which a court ordered production of a root-cause analysis. He added that he is not aware of any cases in which a hospital's legal position was compromised as a result of sharing information with the Joint Commission.
"The subtle point is, we think the legal issues are very serious matters," Bressler said. "There is no question about the uncertainty of the legal situation. There is no question it has a serious negative effect on the success of the Joint Commission's program."
In his decision, Superior Court Judge Jose Fuentes, sitting in Jersey City, wrote that the hospital enjoys no special privilege merely because of the Joint Commission's limited involvement. Although the hospital argued that the analysis "promoted the advancement of medical knowledge and the improvement of medical services," confidentiality also served the hospitals' interests with respect to the litigation, he said. Fuentes also said he does not buy the argument that "without this cloak of confidentiality the medical professionals taking part in this `self-critical analysis' would not have fully and candidly expressed their points of view."
"There is not a scintilla of evidence before me to support such a wholesale indictment of the medical profession," Fuentes wrote.