In a previous post, we highlighted some of the potential advantages and disadvantages of patient participation in what is known as the “Event Analysis Process.” In today’s follow-up piece, I want to explore how and when patients can be involved in the Event Analysis Process, as well as potential challenges resulting from the level of involvement.
Options and Timing for Patient Involvement in Event Analysis
There are numerous ways an institution can structure patient involvement in the Event Analysis Process. A recent Agency for Healthcare Research and Quality (AHRQ) demonstration project named a variety of options that vary in the level of patient involvement and the timing of such involvement. Examples of formal, in-depth involvement may include: patient participation in peer review meetings, participation in safety training programs for clinicians at the institution, or serving on patient safety committees like a patient-family advisory council. Less formal, or involved patient participation may include: one-on-one interviews, small group meetings, or surveys.
The study also found that the timing of patient involvement is key to whether patients benefit from participating in event analysis. One opportunity for patient participation is during or soon after the initial disclosure meeting. The benefit of such early input is that patients and their families are more likely able to recall details of the event that can be used to guide the initial fact finding and event analysis investigation. The downside of this early involvement, however, is that patients and family members may be too physically or emotionally affected to participate. Additionally, ongoing medical care may require their primary attention.
Another opportunity for patient involvement identified by the study could be during a follow-up disclosure conversation. Patients may be more physically and emotionally able to inform a later phase of event analysis, such as during a meeting with the care team discussing formal findings. The benefit of this approach is that providers may have more information to share with patients at this point. Potential considerations of this later involvement are that conclusions may have already been reached from the event analysis and may be difficult to change in spite of new information from patients. The study also noted that a hospital may be concerned about involving patients and family members due to a potential loss of the quality improvement privilege.
What is the quality improvement privilege?
In an effort to encourage disclosure and identification of errors to improve quality, many states, including California, have quality improvement privileges—making the investigative records and peer review of providers by organized medical committees in hospitals not discoverable or inadmissible as evidence to prove liability in a lawsuit.
Moreover, California Evidence Code Section 1157 states that “no person in attendance at a meeting of any of those committees shall be required to testify as to what transpired at that meeting.” This encourages provider participation and openness in investigative and peer review.
However, the California code goes on to note that “statements made by any person in attendance at a meeting of any of those committees who is a party to an action or proceeding,” the subject matter of which was reviewed at that meeting, are not protected by this privilege against use as evidence in a suit. Thus, if a patient or family member(s) were present at such a meeting, it is not clear whether their statements incorporating statements made by peer review medical staff would cause the privilege to be entirely lost for quality improvement purposes.
Striking a Balance
Because of the need for provider participation and transparency to make Communication and Resolution Programs work, and the considerations detailed above, in-depth patient involvement in the Event Analysis Process should be evaluated by each institution.
An initial approach that minimizes the loss of legal protections and provides patients and families with time to process and heal, may be in the “improvement phase” of the Event Analysis Process. At this later stage, patients should have already been given more conclusive findings from the investigation and have a better understanding of what transpired. They may then be ready to provide information that helps to identify system breakdowns, latent conditions, and/or engage in a discussion of the hospital’s proposed changes to prevent reoccurrence of the particular error. They can also provide valuable feedback about the patient-perceived adequacy of the proposed changes, which may also provide the patient and family with a sense of closure.
Patient involvement in the development of remedial measures and changes do not have worrisome legal implications of liability. Federally, and under California Evidence Code 1151, subsequent remedial measures cannot be used as evidence of liability in connection with an adverse event or error.
Flexibility and Patient Needs
Understanding that patients and their families need time to process the error, time to heal and focus on possible ongoing treatment, a setting to talk freely about concerns and fears, to receive answers to questions in laymen’s terms, and to hear an apology, will go a long way in determining if, when, and how patient involvement in event analysis is appropriate.
The key to patient and family involvement is institutional flexibility. The Agency for Healthcare Research and Quality (AHRQ) demonstration project found that providing different ways for patients to give feedback will help to satisfy patient preferences and elicit most information, be it through one-on-one interviews, group meetings, or written feedback. Regardless of the approach chosen, institutions must take the time and invest the resources to develop and nurture a culture of transparency and routinely train providers about new ways of interacting with patients and families after an error or adverse event.
Regardless of whether patients and families are formally included in the Event Analysis Process, hospitals and providers have a duty to learn about what happened from the patient and patient’s family’s perspective. In doing so, care providers genuinely partner with patients and may potentially learn from the patient acting as a kind of physician—
treating broken patient experiences.
By Florence Wang, M.D., J.D.
Author’s Note: The contents of this blog are not intended to be and should not be taken as legal advice. It is for educational purposes only.
Florence graduated from Stanford Law School in 2014. Prior to law school, she studied medicine and received her M.D. from New York University School of Medicine. Dr. Wang practiced in women’s healthcare at a free clinic in Los Angeles and is interested in health law.