Root-cause analysis: Court steps in to affirm confidentiality in malpractice case

Ruling makes them not subject to discovery

Risk managers have feared that a root-cause analysis (RCA) could fall into the wrong hands ever since the Joint Commission on Accreditation of Healthcare Organizations began requiring them in response to sentinel events.

An ongoing malpractice case in West Virginia should provide some reassurance that courts may snatch the RCA away from an eager plaintiff’s attorney and that the Joint Commission will provide backup when you’re in trouble.

The court’s ruling means that the RCA is privileged and not subject to discovery by a plaintiff, says Thomas J. Hurney Jr., JD, attorney with Jackson and Kelly in Charleston, WV. Though the malpractice case still is in litigation, Hurney says the protection of the RCA was a major victory for the defendant. The case involves a claim of wrongful death against a surgeon with the Herbert J. Thomas Memorial Hospital Association, in the Circuit Court of Kanawha County (Hess, et al. v. Surface, Civil Action No. 01-C-2910). A 20-year-old patient was being prepared for a shoulder arthroscopy and soon after the joint insufflation, she crashed and died. Hurney says the hospital cannot divulge details of the incident during litigation, but the hospital immediately treated the incident as a sentinel event and conducted a thorough RCA.

When the patient’s family filed suit, the plaintiffs’ attorney soon targeted the RCA, Hurney says.

"The plaintiffs never sent subpoenas for the interrogatories, and they never asked for the root-cause analysis in so many words, but they kept asking witnesses to bring information that would have been encompassed by the root-cause analysis," he says. "It was clear they wanted that information. We filed a motion for a protective order."

West Virginia has a confidentiality statute for peer review, but Hurney says the plaintiff’s attorneys tried different strategies to get around it. For instance, they argued that since the peer review committee isn’t made up solely of health care providers, it is not a "committee" whose work is privileged under the statute. And in the nightmare scenario imagined by most risk managers, the plaintiff’s attorneys argued that the hospital waived its confidentiality by disclosing the RCA to the hospital board and to the Joint Commission.

"They also said that the root-cause analysis is more in the nature of risk management than peer review, partly because of the type of incidents that trigger a sentinel event and a root-cause analysis," Hurney says.

The calvary arrives

Hurney fought those allegations, along with associate Gretchen Callas, JD, explaining to the court that the RCA is intended as a quality improvement effort rather than simply as a post-incident report. Hurney says he already was making headway with his argument when the cavalry showed up in the form of the Joint Commission. The response of the Joint Commission will be reassuring to risk managers who wonder how they could fight such a claim on a local level. When word reached Oakbrook Terrace, IL, that a West Virginia court might let a plaintiff’s attorney thumb through the RCA, Joint Commission legal counsel Hal Bressler, JD, took off at full gallop.

Bressler attended the hearing in which the court heard arguments regarding the RCA. He says the Joint Commission acted quickly because it realizes that the sentinel event system will become worthless if accredited hospitals fear that an RCA will be used against them in a malpractice case. The Joint Commission has spent years trying to convince providers that they must do a very candid, brutally honest RCA after a sentinel event to improve patient safety; just one bad outcome in a court could unravel much of that work, he says.

"We support the peer-review privilege strongly because we believe that for there to be successful error prevention, the root-cause analysis should be privileged and confidential," Bressler says. "Otherwise, they won’t be done or they won’t be done as effectively as they could be."

Along with the American Hospital Association, the Joint Commission filed amicus briefs with the court urging that the RCA be kept confidential. In the brief, the Joint Commission’s Bressler argued that "Any decision allowing individuals access to peer review records, including root-cause analyses and action plans, would significantly and negatively effect the and safety of health care provided to all patients. Simply put, such an invasion of the confidentiality of the peer-review process would have a debilitating effect on the ability of health care organizations to improve the quality and safety of health care as well as on the ability of the Joint Commission to enhance the achievement of that goal through the accreditation process." 

Judge James C. Stucky ultimately dismissed the amicus briefs, saying they were not appropriate in the case, but he still ruled in favor of the hospital and declared that the RCA was a peer review proceeding under West Virginia law. He reviewed the RCA documents privately and determined that they were privileged and therefore not discoverable.

Risk managers: Take heart

The ruling was a big victory for the hospital, but Hurney and Bressler say it was a victory for hospitals all over the country. A ruling in circuit court in West Virginia has no legal authority elsewhere in the country, but both lawyers say risk managers can take heart in the outcome of this case because it provides encouragement that other courts would follow the same reasoning.

"Until there is an appropriate federal statute, determining what is privileged and discoverable from these peer-review actions is determined by each individual state law," Bressler says. "Nearly all states have peer review statutes, and you have to determine whether these statutes apply or not. We’re pleased to see that the West Virginia court agreed with our interpretation."

Hurney also says the case illustrates the Joint Commission’s determination and willingness to help hospitals who find their RCAs threatened by plaintiffs’ attorneys. Though the favorable ruling came through the work of himself and Callas, he says he was impressed with how the Joint Commission rushed in to the fight.

"The Joint Commission absolutely made the point of protecting the sentinel event process. In fact, they said they don’t even care what happens to the hospital in the liability case. They don’t have a dog in that fight," he says. "But they came in and made a fight for the peer-review issue. There was an importance to this case beyond the dispute among these two parties."