Do Joint Commission guidelines have a legal impact on our practice?

Reduction in liability risk not always evident

Emergency departments pour a lot of resources into compliance with the Joint Commission's standards, including the National Patient Safety Goals. But is there any evidence that compliance with The Joint Commission standards decreases liability risks for an emergency department?

"That's a big leap to make," says Angela F. Gardner, MD, FACEP, assistant professor in the division of emergency medicine at University of Texas Medical Branch, Galveston, TX and former director of risk management for Dallas-based EmCare. "There isn't any data showing that the standards have caused an increase in lawsuits, or a decrease in lawsuits."

It might not be possible to show a direct link between Joint Commission compliance and ED lawsuits, adds Gardner, unless a clear connection could be made between a Joint Commission requirement and a dramatic reduction in lawsuits, for example.

Considering all of the things that affect patient outcomes, she says, you might not ever be able to make that conclusion.

"That said, I have been not just surprised but shocked when I look at the data on something like getting a pulse oximetry reading on a patient that has a respiratory complaint," says Gardner. "My assumption was that would be a giveaway standard, but some of the early reporting shows that only 75% of people get pulse oxes. That's something very basic that is either not being done or not being documented 25% of the time. We make the assumption that it's just not being documented, but maybe it's not being done."

This is the other side of the coin, says Gardner - it's possible that Joint Commission requirements bring more attention to clinical practices, like taking routine vital signs, that affect ED patient outcomes.

Abnormal vital signs are used in risk management as teaching tools to improve care, Gardner adds, but in order for the vital signs to be examined, they have to be documented in the first place.

Long-term impact on liability

All Joint Commission standards are intended to enhance quality and safety, and should in the long term help the ED with liability issues in terms of preventing incidents that would result in claims, according to Harold Bressler, general counsel for The Joint Commission.

However, Bressler notes that the standards are not promulgated to establish a legal standard of care. "We cannot control what courts will do and it is not our business what they do with our standards," he says. "And in fact, it's an unusual case where a failure to comply with a Joint Commission standard will be directly determinate of whether an incident of care was negligent or not. But it has happened."

Failure to comply with Joint Commission standards may be cited against the ED in the event of a malpractice lawsuit, whether the organization is accredited or not. "Plaintiffs can say, here's a National Patient Safety Goal you were supposed to follow and you didn't, and it resulted in harm to a patient," says Bressler.

It can work the other way too, says Bressler, with an ED pointing out in a courtroom that care was in compliance with Joint Commission standards.

"The key point is that the standards are intended to improve quality and safety," he says. "And if you do that, you are doing well for yourself liability-wise and will have fewer claims."

Although there is no specific data showing that the number of lawsuits is less with Joint Commission compliance, liability carriers do offer specific benefits to accredited organization. These include premium discounts, or preferential coverage, and waiving required site visits before coverage is extended.

"I don't know of a solid research study, but it does make logical, intuitive sense. We have heard for years that liability insurers prefer Joint Commission-accredited organizations because of our strong focus on patient safety," says Kathleen Goryl, associate director of payor relations for The Joint Commission. "They look at that as a risk reduction strategy for them."

One insurer uses the National Patient Safety Goals as a screening criteria to determine whether they want to extend coverage to an organization, notes Goryl. "Accreditation in general is designed to be a risk reduction activity. From an insurer perspective, accredited organizations are saying they have put policies and procedures in place to safeguard themselves from adverse events and liability. They have already done a lot of the work to safeguard themselves."

ED not always well represented

The Board of Commissioners is the Joint Commission's leadership and oversight body, with the mission to continuously improve the safety and quality, and "none of the 29 Board members have an emergency medicine background," says Tom Scaletta, MD, president of Emergency Excellence, a Chicago-based organization that improves patient care and efficiency in the ED while controlling costs.

As a result, the major emergency medicine professional organizations - the American Academy of Emergency Medicine, the American College of Emergency Physicians, and the Emergency Nurses Association - have been working together to lobby for changes regarding certain standards that are not helpful, and sometimes harmful, to achieving the goal of improved safety in the ED, says Scaletta.

"Some of the core measures make sense - giving aspirin and beta-blockers early in acute myocardial infarctions," says Scaletta. "Others, like the four-hour rule for antibiotics in pneumonia rule, are more arbitrary."

Scaletta also notes, "Unfortunately, the Joint Commission is mute on two substantial opportunities that would improve outcomes - requiring board certification in emergency medicine for physicians caring for sick patients, and disallowing boarders from overrunning the ED."

Source

For more information, contact:

• Angela F. Gardner, MD, FACEP, Assistant Professor, Division of Emergency Medicine, the University of Texas Medical Branch, 301 University Boulevard, Galveston, TX 77555-0144. Phone: (409) 772-1425. Fax: (409) 772-9068. E-mail: agardner@acep.org.