Q&A: Serious Reportable Event reporting and peer review

Q:  Do the new state Department of Public Health requirements for hospitals and other facilities to undertake a “root cause analysis” as part of disclosing Serious Reportable Events compromise the confidentiality of physician peer review?

“We firmly believe that any public reporting of SREs or their analysis should not be viewed as a voluntary relinquishment of a provider’s peer
review safeguards and that protecting the integrity of the peer review process is essential for improving patient safety,
our most important responsibility. There should be more explicit protections to ensure that peer review discussions are exempt from any public review.”
—Timothy F. Gens, senior vice president, policy & regulation, general counsel, Massachusetts Hospital Association

“While this new regulation does not directly jeopardize the confidentiality of individual physician peer review, there is a concern that erosion of protections for one type of peer review may weaken an entire system that is designed to promote quality care. … The new regulations require that the root cause analysis – which previously remained confidential – be provided to the payor and the patient as well as to DPH, which appears to create a conflict with
existing peer review law.”
— Pamela Heacock, associate general counsel, UMass Memorial Health Care Inc.

“I think there is an irreconcilable tension between at least one section of the regulations and the confidentiality provided to a medical peer review committee under state law. Shortly after the peer review privilege was created, the Board of Registration in Medicine promulgated regulations to implement their newly created patient care assessment duties, some of which were challenged by a consortium of hospitals as violating the peer review statute. It may be that hospitals and or medical staffs will need to mount a similar challenge to these new DPH regulations.”
— Paul R. Cirel, partner,
Dwyer & Collora, Boston

“As best I can tell, the Legislature did not intend to undercut the medical peer review privilege when it adopted [the new reporting requirements]. I anticipate that hospitals will complete the new reporting form by providing a short, non-privileged narrative. For those SREs that may also become the subject of a medical peer review proceedings, a hospital may do well to conduct two separate review processes. The first is not privileged and would focus on preventability and provide the basis of the hospital’s SRE report to DPH. The second would likely include a root cause analysis that remains privileged as part of the confidential medical peer review proceedings.”
—Regina Rockefeller, partner, Nixon Peabody health services group, Boston