The Joint Commission on Accreditation of Healthcare Organizations' (JCAHO) revised Sentinel Events Policy is now in effect. The revised policy became effective April 1 despite widespread concern by hospitals and other facilities about waiving privileges on disclosing otherwise confidential information when an organization self-reports.
The Sentinel Events Policy encourages accredited facilities to self-report certain "sentinel events" within five days of their occurrence. A facility that fails to report a sentinel event risks being placed on Accreditation Watch, a publicly disclosable attribute of an organization's existing accreditation status. A sentinel event is defined as:
- An unanticipated death.
- A patient's major permanent loss of bodily function.
- An infant abduction.
- An infant discharged to the wrong family.
- A patient's rape by another patient or staff.
- Patient's hemolytic transfusion reaction.
- Surgery on the wrong patient or body part.
Although the JCAHO Board of Commissioners did not delay the effective date, it did take certain steps in acknowledgment of those concerns. For instance, JCAHO advised health care organizations to remove patient or caregiver identifiers when reporting sentinel events. The board also stated all copies of the root-cause analysis documents should be returned to an organization after they have been reviewed.
The mere disclosure of this sensitive information, however, breaches some legal protections such as attorney-client privilege. The board also established a task force to explore, on a state-by-state basis, how confidentiality of information, prepared by an organization after experiencing a sentinel event which is then shared with JCAHO, can be preserved. The task force will seek to identify specific mechanisms for maintaining the confidentiality of event-related information prepared by healthcare organizations.
Self-Reporting
The advantages and disadvantages of following the policy are as follows:
Advantages – JCAHO will not disclose to the public the occurrence of the sentinel event at a given facility during the 30 days in which the root cause analysis is pending. Theoretically, the facility will maintain goodwill and a cooperative relationship with JCAHO. Further, it will not be placed on Accreditation Watch unless the facility fails to submit a root cause analysis within 30 days.
Disadvantages – Increased risk of discoverability and admissibility of documentation because root cause analysis, once given to JCAHO, is no longer protected by state law as an attorney-client privileged document, a "peer review" document or confidential patient medical record; it may be subject to discovery by plaintiffs in a lawsuit against the hospital or a physician.
A root-cause analysis, if not protected adequately, may serve as a road map to a plaintiff's attorney suing a hospital. A document, prepared by a hospital, highlighting its weaknesses, will substantiate a plaintiff's argument and could result in higher and more frequent payment of claims. Under either scenario, regardless of whether the root cause analysis is submitted to JCAHO, it can be prepared in a manner which protects the confidentiality of hospital records to the extent permitted by state law, i.e., patient medical records and attorney/client privileged information.
Not Reporting
Once a sentinel event is reported, a risk exists that event information may become available to the public.
Advantages – Even if a facility does not report an event, a root-cause analysis should be prepared and retained in the file. That way, in subsequent surveys where sentinel events are discussed, a root-cause analysis will be available for disclosure to a surveyor on a limited basis. This maintains the confidentiality of information so that it is not discoverable in a lawsuit.
Disadvantages – If JCAHO learns of an undisclosed sentinel event, it will make known publicly its intent to review the event. If JCAHO confirms the occurrence of a sentinel event and the facility has not prepared a root-cause analysis, the facility will be placed on Accreditation Watch.
The Joint Commission has initiated procedures to protect the confidentiality of sentinel event information shared by an accredited organization, including the destruction of all copies of the root-cause analyses after abstracted information is entered into the Joint Commission database; and after July 1, 1998, facilities may request an on-site review of a root-cause analysis.
A Sentinel Events Legal Issues Task Force continues to address potential remedial strategies that might be employed to minimize the risk of discoverability of specific confidential information.
Certainly, JCAHO wants all accredited organizations to participate in the sentinel event program as the integrity of the information gathered will be more useful; whether or not a facility reports a sentinel event is a decision each one should make in consultation with legal counsel and its risk manager following a close review of the requirements of state law.