Risk Management:
Investigating Events
page 3
Follow-up Reports and Legal Protection
NJ law does not protect adverse event or follow-up reports from discovery during legal proceedings, with limited exceptions. Nevertheless, fear of discovery of documents should not prevent the practice manager or other designated individual from carrying out their basic responsibilities, investigating events and recommending corrective action to improve patient care and overall safety. Moreover, not correcting a known hazardous condition can place staff and patients at risk, and make a subsequent claim against the practice more difficult to defend.
To optimize legal protection of the follow-up investigation and reporting process to the extent possible, in the absence of statutory protection, practice managers or other designated individuals should consider the following actions:
- Consult with legal counsel on follow-up report design
- Implement standardized investigation and documentation procedures
- Educate all clinicians and staff on the importance of recording only objective, factual information
- Discourage staff from making personal notes, or writing private recollections, opinions or accusations, that might later be used against the organization or provider in a lawsuit
- Inform their legal counsel of staff members who have direct knowledge of an event; counsel may record such opinions/impressions in anticipation of litigation, then such records would be protected by attorney-client privilege
Potential Benefits
In return for the time, effort and costs expended in conducting a thorough event investigation, the physician practice may find there are benefits to be gained.
- Predict and Protect: Collecting information about the type and number of events in the practice will enhance the ability to predict future occurrences, and then take preventative actions that will better protect patients, visitors and staff from similar risk. It can also help protect the practice from claims and lawsuits, thus avoiding financial loss.
- Correct and Improve: The information allows the practice to make system improvements. It also demonstrates management's commitment to safety.
- Defend: Timely reporting allows the practice manager or other designated individual to do a thorough investigation. This in turn will allow a quick response to the event and provide valuable information that will support a defense in case of a future lawsuit.
- Educate: Knowledge of types, numbers, and severity of events will enable management to develop more effective, targeted educational programs. The staff’s heightened awareness of events can also help to reduce or avoid recurrence.
In summary, effective event investigations can have a significant impact on both risk reduction and patient safety for the physician practice.
This article is not intended as legal advice. Readers should consult professional counsel, who is familiar with federal and state laws, for guidance with specific legal, clinical or ethical questions.
Reports made in compliance with the NJ Patient Safety Act (N.J.S.A. 26:2H-12.23-12.25), enacted in April 2004, effective Oct. 2004, are protected from discovery. This law requires a health care facility to report to the Dept. of Health and Senior Services (DHSS) every “serious preventable adverse event” that occurs in the facility. The Act is applicable only to licensed health care facilities in NJ, including general, long term care and mental health hospitals, and their licensed ambulatory care and satellite facilities. Thus, most physician practices would not have to comply with, nor be protected by, this law.