Mandatory reporting proposal is scaring risk managers

Government report endorses IOM suggestions

The federal government’s plan for reducing medical errors includes some grand ideas and some provisions that should worry risk managers, say risk management experts familiar with the report. The most troubling recommendation, they say, is the push for mandatory reporting of medical errors.

Risk managers were put on the alert recently when the Institute of Medicine (IOM) released its report on medical errors, calling for a major effort to reduce the rate of errors. The message, observers said then, was that the public was now acutely aware of a problem that had long been the focus of risk management. Then, in February, the government’s task force responded to the IOM report with another set of recommendations and initiatives indicating that momentum is building.

That report, from the federal Quality Interagency Coordination (QuIC) task force, endorses most of the IOM recommendations, including the call for mandatory reporting of medical errors and the formation of a new agency to oversee the reduction of medical errors. (See p. 40 for more on the report.) Risk management experts say the QuIC report is ambitious and could result in some positive changes, but they also express doubt over how fast anything will happen and whether the report’s recommendations are the right strategy for improvement.

Grena Porto, RN, ARM, DFASHRM, director of clinical risk management and loss prevention services at VHA Inc. in Berwyn, PA, and past president of the American Society for Healthcare Risk Management, says the QuIC report indicates a willingness by the federal government to move on the medical error issue, but she doubts there will be any significant advances in the near future.

"The reason is that there is so much in there that is not what people were expecting," she says. "They want mandatory reporting on a state level, for instance, and not all states have mandatory reporting systems in place. It’s going to take some time. They’ve got a long road ahead of them before they can implement this."

The same skepticism is expressed by Geri Amori, PhD, ARM, FASHRM, risk manager with Fletcher Allen Health Care in Burlington, VT. She says there are many unanswered questions in the QuIC report, and risk managers will recognize that some of the suggestions are fraught with practical complications. The call for mandatory reporting, for instance, needs a lot of work, she says. "I think there will be some kind of reporting, but my hope is that it will not be punitive reporting. If the reporting just serves to help people punish individuals, then we will have lost an opportunity. Will it be just another tool for trial attorneys? This needs a lot more thinking through."

The scope of the QuIC report ultimately may work against it, says Martin Hatlie, JD, a partner with the Partnership for Patient Safety in Chicago, a network of companies and organizations studying the issue of medical errors and developing commercial products and other solutions. Hatlie has been watching the federal effort closely.

"The QuIC report is very ambitious and lays out a big agenda," he says. "It remains to be seen how quickly they can implement any of this, but I do think you’re going to see some effects in the private sector no matter how long it takes some of the legislative initiatives to get going."

The private sector may move much more quickly than the government in creating new requirements for health plans, for instance, to reduce medical errors. Hatlie suggests that tangible changes for health care providers are far more likely to result from that effort than from the government efforts. At the same time, government efforts have the potential to pose more liability problems for providers, he says.

Much of the QuIC report focuses on the issue of mandatory reporting of medical errors, suggesting that it would be an effective way to hold individuals and organizations accountable for errors, create a database of information, and eventually reduce the frequency of errors. Among risk managers, however, the idea of federally mandated error reporting raises a great many questions, none of them pleasant or easy.

"Discoverability and confidentiality are important issues here, but the biggest issue is that they view mandatory reporting as an accountability issue, which sounds an awful lot like blame to me," Porto says. "We’re going right down that road to punishing someone so they won’t make the same error again, and we know that’s not the way to reduce errors. I have a problem with the whole punitive aspect."

Aside from the practical concerns and the punishment issue, Porto says she is not convinced that reporting errors actually improves health care. "We have lots of precedents for mandatory reporting systems already, like the program implemented in New York in 1986," she says. "If it were true that having a mandatory reporting system decreases errors and improves health care, New York state would have the best health care in the country. And it doesn’t."

Proponents of mandatory reporting often point to the aviation industry’s style of handling crash investigations in a formal, relatively open way designed to root out the true causes. But some observers say the health care community already has made such an attempt with the sentinel event process used by the Joint Commission on Accred itation of Healthcare Organizations, and that process has turned up a great many concerns about discoverability and information being used in lawsuits. Leilani Kicklighter, RN, ARM, MBA, DASHRM, assistant administrator for safety and risk management with the North Broward Hospital District in Ft. Lauderdale, FL, says she fears treading the same ground with the QuIC recommendation for mandatory reporting. Kicklighter is a past president of ASHRM.

"It would be ever so nice if the world as a whole were like the aviation industry, where everything is public," she says. "We know there are lawsuits as a result of planes going down, but it’s such a public matter that there’s a different mindset. In the health care profession, a plaintiff’s attorney could get the information and use it, so all the good that would go into identifying and analyzing the medical error could backfire."

The result, say several observers, could be that medical errors are driven underground. In a worst case scenario, the mandatory reporting system and its consequences could make health care professionals actually hide their errors instead of dealing with them constructively.

Legislative solutions could be slow

The QuIC report acknowledges that mandatory reporting could cause liability problems, suggesting as a solution that state legislatures enact legal protections for health care providers. Even the principal staff member of the QuIC task force tells Healthcare Risk Management that the concerns are serious. Nancy Foster, coordinator of quality activities for the Agency for Healthcare Research and Quality in Rockville, MD, says the task force wants to work out a solution.

"The whole issue of mandatory reporting has taken on a life of its own, actually," she says. "It’s not the fact that the system is mandatory that creates the problem. It’s the fact that the information could be disclosed or discoverable in some fashion. We already have reporting systems in place that have peer review protection, and that may be the most appropriate way to structure this reporting system so that you encourage people to report as freely as possible."

Foster says the QuIC task force has no intention of opening up new avenues to information that could be used against providers in malpractice cases. "The malpractice concern definitely is factored into our plans," she says. "The longer-term goal is to reduce errors, and that would reduce instances of malpractice, the opportunity for anyone to be sued. In the short run, we believe that the appropriate protections for the data will ensure that hospitals are no more or no less at risk than they are now."

That sounds nice, Hatlie says, but he doubts that the state legislative protections will come as quickly as needed. The QuIC report does not indicate that the mandatory reporting would be implemented only after the peer review protection is provided, so Hatlie says risk managers are justified in fearing that they will be left unprotected when the reporting is required.

"When you’re thinking about motivating 50 states to do something, and you think of the power of the trial lawyers and their historic power to stop tort reform in the courts, I think it’s a big challenge," Hatlie says. "The whole way the QuIC report bridges the state role and the federal role adds a level of complexity that will slow this down legislatively."

Kicklighter also points out that it may not be enough for states to enact peer review protection. The experience with the sentinel event process suggests that any information provided to the federal government eventually can make its way to an agency that does not protect the information, she says. "If you’re Medicare or Medicaid, for instance, and they get the information, HCFA then gets the information, and it can be released through a Freedom of Information request.

"Are they going to plug that loophole? It’s not as simple as having states enact laws to protect you there, because this is going to be some sort of national repository. There has to be some protection on that level."

Sources

- Leilani Kicklighter, Assistant Administrator for Safety and Risk Management, North Broward Hospital District, 303 S.E. 17th St., Ft. Lauderdale, FL 33316. Telephone: (954) 355-4993. E-mail: Lkicklighter@NBHD.org.

- Grena Porto, VHA, 200 Berwyn Park, Suite 202, Berwyn, PA 19312. Telephone: (610) 296-2558.