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           The Joint Commission on Accreditation of Healthcare Organizations requires hospitals to report and investigate sentinel events. This requirement was implemented in an effort to encourage hospitals to conduct candid investigations of unfortunate outcome in an attempt to improve the quality of care.  In furtherance of the goal of improving patient care, the reporting and investigation of sentinel events is considered privileged.  A Circuit Court in Charleston, West Virginia, recently considered just how broad this privilege is. 

            In the case of Hess v. Surface, the estate of a patient filed a wrongful death suit against a surgeon who was performing a shoulder arthroscopy upon a twenty year old patient.  The patient died shortly after the joint insufflation was initiated as part of the procedure.  At the time of the surgery, the Hospital considered the outcome a sentinel event and conducted a thorough root-cause analysis.  The root cause analysis was performed by a committee at the hospital.  The root cause analysis conducted by the committee was a procedure for evaluating the services performed by health care providers at the hospital.  As part of the analysis, the committee considered what happened to the patient, why it happened and what were the most proximate factors.

            Shortly after filing the lawsuit, the attorney for the patient’s estate made efforts to obtain information surrounding the hospital’s investigation of the case.  Although the attorney did not directly ask for information concerning the root cause analysis conducted by the hospital, the attorney did try to subpoena documents and other information from witnesses that related to the root cause analysis investigation. 

            West Virginia, like in other states including Massachusetts, has a confidentiality statute for peer review.  The plaintiff attempted to circumvent the statute in this case by arguing that a peer review committee that is not made up solely of health care providers is not a committee whose investigation would be privileged under the statute.  The plaintiff also argued that the hospital waived the privilege by disclosing the root cause analysis investigation to the Joint Commission.  In response, Counsel for the doctor argued that the root cause analysis performed was considered a quality improvement effort and not simply a post-incident report. 

            The Joint Commission attempted to submit a brief in support of the defendant’s argument.  The Joint Commission was concerned that if a root cause analysis performed by a hospital can later be used against a physician in a medical malpractice case then the purpose of the sentinel event reporting system would be worthless.  The Joint Commission implemented such a reporting system to improve patient safety.  If such investigations were subject to production by plaintiff’s attorneys, the Joint Commission was concerned that the investigations would not be done as effectively. 

            Although the Court would not accept the brief submitted by the Joint Commission, since they were not a party to the case, the Court did hold that the root cause analysis performed by the hospital was a peer review proceeding under West Virginia Law.  The Court found that the committee at the hospital that investigated the event met the broad definition of a  “review organization” under West Virginia Law.  The Court likewise found that the investigation conducted by the committee met the commonly accepted definition of peer review.  The Court found that the quality and efficacy of services rendered at the hospital was clearly the issue investigated by the committee.  The Court also found that the investigation was conducted to identify potential changes which could be made in systems or processes at the hospital that would reduce the risk of such events occurring in the future.  The Court went on to explain that the investigation conducted was not merely a general review of procedures as part of risk management, but rather, an analysis that was conducted only after an adverse event in an attempt to prevent any future adverse occurrences. 

            The Court in West Virginia broadly interpreted the definition of a peer review committee.  The fact that the committee was made up of both health care and non-health care professionals did not eliminate the protection afforded to the committee’s findings.  The Court’s ruling also makes it clear that the privilege still applies even though the internal investigation of the hospital’s peer review committee was to be disseminated to the Joint Commission. 

            The ruling in West Virginia would not be controlling in other jurisdictions.  However, other states, including Massachusetts, do have similar peer review statutes.   The interesting part about this case is that the Joint Commission took a very active role in protecting the peer review process.  The Joint Commission’s actions show that they are dedicated to protect the investigation of sentinel events which must be reported to them.  These protections from discovery in subsequent litigation were an important element of improving health care quality in the United States.  Candid discussions about the reasons for an unfortunate event are considered a priority in preventing reoccurrence.  Over the past decade, these reviews have provided for changes in the way health care is administered.  New safeguards have been implemented to lessen the chance for human error in the dispensing of medications for example.  Such safeguards result from the free flow of information regarding how the event happened and what flaws in the system could be corrected.  The protection of this information from subsequent litigation will greatly enhance the provision of the health care in this country.

Hospitals to Report and Investigate Sentinel Events

by Attorney Frank E. Reardon

October 2002