Be wary of legal issues related to metrics
Be wary of legal issues related to metrics
As good as metrics and dashboards can be for a risk management program, they can bring legal risks if not handled properly, cautions Ari Markenson, JD, MPH, an attorney with the law firm of Benesch Friedlander Coplan & Aronoff in White Plains, NY.
Markenson recently was the in-house counsel for a large long-term care organization, and he advised leaders there to consider the legal ramifications as they adopted metrics and dashboards more widely for risk management issues. While he is a strong proponent of using metrics to study risk management issues, he points out that the collection of extensive data can come back to bite you if you don't respond properly to what the data show you.
"From the legal angle, I was very, very concerned that the operations team would be putting these metrics together, finding all this software and all these tools, and then they would have all that information; but they don't use it," he says. "You create liability for yourselves. You set up this dashboard or bought this software package, created this great system with all these metrics, but no one is actually spending a considerable amount of time looking at the data you're getting."
Markenson compares the risk to another that is familiar to risk managers: having a policy or procedure but not following it. A plaintiff's attorney loves to tell a jury that the hospital had a solid policy in place, but did not follow its own policy.
For instance, Markenson says, perhaps the metrics indicate that over the last year, your facility is admitting more patients for outpatient dialysis than it ever has before. The risk manager may notice the upsurge and notify the medical director.
"That's great, but from a legal perspective is that really enough to follow up on that potential risk management issue?" he says. "I would say probably not. You have to really dig into that information and see what it means. You have to act on it, because if you don't, you have the potential for further liability; because it's one thing for someone to engage in behavior that results in liability, but it's something else for the institution as a whole to have information indicating there is an institutional problem and not do something about it."
The response to such data must be carefully thought-out and thorough. Simply writing a report to someone else and suggesting that person look into the data is not enough, Markenson says.
"As we move to more and more technology, there is tons of data available to us that allow us to connect the dots and see things we never could have seen before," Markenson says. "Twenty years ago, if you wanted to figure out why dialysis patients were starting to be admitted more, it would have taken someone going through stacks of paper charts. It wasn't something you could find out in real time. Now that you can find out, legally you have an obligation to do so."
A health care provider using metrics and dashboards needs to make a full commitment to using them fully and appropriately, he says.
"The last thing you want is for a plaintiff's attorney to ask you what data you've collected on patient falls, and all of a sudden you realize you have a huge database on patient falls over the last seven years; and you've done zero about it," Markenson says. "That attorney is going to explain to the jury that it's bad enough when you don't even have the data to know how to prevent falls, but it's a lot worse when you have it and just don't do anything with it. It would be much better if you could point to all the changes and improvements you put in place in response to that data."
Source
Ari Markenson, JD, MPH, Benesch Friedlander Coplan & Aronoff, White Plains, NY. Telephone: (914) 682-6822. E-mail: [email protected].
As good as metrics and dashboards can be for a risk management program, they can bring legal risks if not handled properly, cautions Ari Markenson, JD, MPH, an attorney with the law firm of Benesch Friedlander Coplan & Aronoff in White Plains, NY.Subscribe Now for Access
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