Protecting and Disclosing Proactive Risk Assessments

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Protecting and Disclosing Proactive Risk
Assessments David M. Sine, CSP, ARM SafetyLogic
Systems Austin, TX 512-351-9580


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Protecting Proactive Risk Assessments

• Proactive Risk Assessments include but are not
  limited to
• FMEA (PI.3.20)
• RCA (PI.2.30)
• Hazard Surveillance Rounds (JCAHO EC.1.20)
• Hazard Vulnerability Analysis (EC.4.1 and
  EC.1.10)
• Any analysis of claims, occurrences, or incidents
  

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RM Questions to Consider

• Will the risk assessment documentation you are
  about to generate be discoverable? Admissible?
  Why?
• In terms of evidentiary protection, what is the
  best way to handle risk assessment information?
• Going forward, what should be done in terms of
  evidentiary protection for risk assessments?
  Why?

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The Risks of Risk Assessments

• Does the terminology FAILURE discourage use
  of FMEA?
• Is there fear that FMEA or RCA is an admission of
  guilt or incompetency?
• Is there fear that the FMEA or RCA or hazard
  assessment will be DISCOVERABLE AND ADMISSIBLE in
  court and other legal proceedings?

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Risk Assessments Discoverable and Admissible?

• DISCOVERABLE plaintiff seeks information
  through interrogatories, depositions, and
  requests for production
• ADMISSABLE a legal determination that the
  information can be presented as evidence

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But a risk assessment is protected.

• Only if.
• It is generated under a recognized form of
  evidentiary protection
• It is used under a recognized form of evidentiary
  protection.

THE PROTECTION DEPENDS UPON STATE LAW
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There is no federal protection!
FEDERAL FOCUSED REVIEW
ONCE UNDER A FEDERAL FOCUSED REVIEW, THE
ASSESSMENT NO LONGER ENJOYS STATE EVIDENTIARY
PROTECTION
RISK ASSESSMENT UNDER STATE EVIDENCE PROTECTION
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A risk managers risk assessment solution

• Do the assessment (RCA, FMEA or other)
• Design the assessment with potential discovery in
  mind
• Avoid using as a criteria in the assessment
  for loss control use quality indicators
  (clinical severity)
• Teach individuals how to properly prepare and use
  risk assessments under whatever protections are
  available

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Hazard Analysis
SEVERITY RATING  
 
     
 
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Hazard Analysis
SEVERITY RATING  
 
     
 
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Hazard Analysis

• PROBABILITY RATING
• Frequent - Likely to occur immediately or within
  a short period (may happen several times in one
  year)
• Occasional - Probably will occur (may happen
  several times in 1 to 2 years)
• Uncommon - Possible to occur (may happen sometime
  in 2 to 5 years)
• Remote - Unlikely to occur (may happen sometime
  in 5 to 30 years)

 
     
 
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FMEA Hazard Scoring MatrixA Filter
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Medical DisclosureRI.2.90

• Patients and when appropriate their families are
  informed about the outcomes of care , treatment,
  and services, including unanticipated outcomes.
• Are investigations done in response to
  unanticipated outcomes protected if disclosed as
  required by RI.2.90?

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Medical Disclosure

• Disclosure Elements

• Material Change in Plan of Care (Trigger)
• Ombudsman or Physician (Who)
• Known Medical Facts (What)
• Documented in Medical Record
• Potential for RCA (if JCAHO Sentinel Event)

• Significant risk management issue Are there
  opportunities to make systems more robust and
  prevent a reoccurrence and are these subsequent
  remedial actions admissible?

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Medical Disclosure

• Content of Disclosure

• Pertinent Medical Facts (what happened) and NOT
  blame or fault
• What was done immediately for patient comfort
  and safety
• Any changes in the Plan of Care
• Prognosis

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Protecting and Disclosing Proactive Risk
Assessments

• Summary
• Both FMEA and RCA can be protected if precautions
  are taken
• Precautions are state specific
• Disclosure of unanticipated outcomes and sentinel
  events may open the door to discovery
• Disclosure can be managed and protected as can
  RCA and FMEA if you have a plan

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Protecting and Disclosing Proactive Risk
AssessmentsQuestions?