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Court Rulings Could Squelch Reports of Errors

Cheryl Clark, for HealthLeaders Media, October 30, 2012

The law was an outgrowth of the 1999 report by the Institute of Medicine To Err is Human, which urged federal lawmakers to pass protection legislation that would encourage hospitals to embrace a blame-free culture of safety. Protected from legal discovery, they could correct system failures and make harmful events much less likely to recur.

To date, some 80 PSOs around the country have sprung up, and are working with hundreds of hospitals around the country.

But two Kentucky lower court judge decisions have limited the scope of those discovery protections just to something called "self-limiting analysis," or peer-review discussions involving an error, incident, safety issue, or near miss, which hospital attorneys say might be too narrowly defined or open to interpretation. 

Data on infections, for example, intended for reporting to a PSO or an agency that deems hospitals worthy of Medicare reimbursement, could become discoverable, and therefore public.

"The Court of Appeals' addition of  'self-examining analysis' to the definition of PSWP abrogates the Act's privilege protections by re-defining and restricting the information that qualifies for the privilege," the Kentucky Hospital Association and the American Hospital Association said in a brief filed last week.

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