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The intentions of The Joint Commission’s recommendation to self-report medical errors were:

  • to learn about the frequency and causes of medical errors;
  • to use this information to communicate with other facilities about “lessons learned”; and
  • to reduce the occurrence of future sentinel events.

However, concerns were raised surrounding the possibility that the information would be subject to disclosure in a lawsuit rather than be used strictly for safety assessment. TJC went forward with implementation of the policy despite these concerns, specifying that the information would be protected under the peer-review/quality-assurance privilege. This privilege is based on state law and is intended to protect providers’ PR/QA documents from discovery. The decision to allow the discovery of this documentation depends on individual state law and each particular case.

Clearly, the plaintiff will want any and all documentation relating to the sentinel event in order to attempt to answer the question of causation. This may, in fact, include the PR/QA documentation. Knowing that these documents likely exist, plaintiff attorneys should be prepared to include them in their request for production of documents. The burden of privilege, on the other hand, lies squarely on the shoulders of the defense.

This month’s civil topic is Serious Reportable Events (“never events”). Topics covered are:

  • “Never event” defined (6/2/14)
  • Reporting Requirements (6/9/14)
  • Finding the root of the problem (6/16/14)
  • Legal implications (6/23/14)

Note: To see all posts in this topic, click here.



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