JCAHO
JCAHO has announced that it will shift review of organizations participating in its Health Care Staffing Services Certification Program from annually to once every 2 years. Those organizations will now undergo an onsite review every 2 years. Participating organizations will be required to complete a Periodic Performance Review in which firms will evaluate compliance with Joint Commission standards at the midpoint of the review cycle.
JCAHO has established a Physician Engagement Advisory Group to advise the Commission in its efforts to expand physician participation in the accreditation process and to broaden physician engagement in quality of care and patient safety initiatives.
In late December 2005, JCAHO announced the launch of the first certification program for chronic kidney disease management. This program is based on the National Kidney Foundation's clinical practice guidelines, and will objectively evaluate the effectiveness of chronic kidney disease programs in assessing, classifying, and stratifying patients at risk of developing chronic kidney disease as well as facilitating the entry into a treatment program to manage and control the disease. The standards for this certification are available online JCAHO's Web site at http://www.jcaho.org.
JCAHO's Board of Commissioners has approved the launching of a new Joint Commission public policy initiative to address the development of a national strategy for the gathering, preparation, and dissemination of hospital performance data. It will address the issues surrounding the creation of a national public utility for performance measurement data, the potential design of a national data system that could meet multiple stakeholder needs, and how to best protect patient confidentiality in such a system.
JCAHO's Board of Commissioners has authorized the creation of performance data and information reports that will be routinely provided to hospitals starting in 2007 to help them improve clinical performance and care-related internal operations. It has also approved enhancement of open access to performance data through Quality Check, an online source of accreditation and related data and information that anyone can access to get information about the performance of individual accredited organizations and to compare their performance against state and national benchmarks. This enhancement should be in place by the summer of 2006.
JCAHO has issued an addendum to Sentinel Event Alert #35, using medication reconciliation to prevent errors. This addendum addresses the fact that the patient may not be able to participate in the medication reconciliation process, and indicates that when the patient is unable to participate in the process and has requested assistance from another person, the staff should involve that person in the medication reconciliation process at all interfaces of care, and on admission and discharge. JCAHO sentinel event alert issue 35, February 9, 2006.
ARTICLES OF INTEREST
Carder-Thompson E, Kaufman R,Krebs-Markrich J. Research misconduct: a new area of focus for government enforcement. Health Lawyers News. February 2006;10(2):24-31.
Clark M. Oregon's death with dignity act and alleged patient euthanasia after hurricane Katrina-the government's role. The Health Lawyer. February 2006;18(3):1-7.
Fisk R. Patient financial responsi-bility under high deductible health plans: what providers can & can't do if the patient can't pay. The Health Lawyer. February 2006;18(3):16-20.
Martin R. Federal, state, and public-private responses to medical error and patient safety: and overview. Health Lawyers Weekly. February 17, 2006.
O'Flaherty N, Furman P. How FDAhopes to decrease medical errors with the help of bar code technology. Health Lawyers News. December 2005; 9(12):5-10.
Simpson K, Knox E. Essential criteria to promote safe care during labor and birth. AWHONN Lifelines. December, 2005/January 2006;9(6):478-483.
Haugh R. EMTALA warning-government turns up the heat on hospitals that keep ambulances idling. Hosp Health Netw. March 2006;80(3):19.
Scalise D. Public disclosure-Massachusetts hospitals open up on nurse staffing numbers as ratio debate goes on. Hosp Health Netw. March 2006; 80(3):20.
Bolin J. When nurses are reported to the National Practitioner's Data Bank. J Nurs Law. Fall 2005;10(3):141-149.
Kim S. Confucian bioethics and cross-cultural considerations in health care decision making. J Nurs Law. Fall 2005;10(3): 161-167.
Wright L. Bill of Rights for nurses in licensure matters. J Nurs Law. Fall 2005;10(2):177-180.
REGULATION
The Department of Health and Human Services (DHHS) has issued a proposed rule that would change provisions in the Health Care Quality Improvement Act of 1986 governing the National Practitioner Data Bank (NPDB). The proposed changes would incorporate statutory requirements that states adopt a system of reporting to DHHS certain adverse licensure actions taken against healthcare practitioners and healthcare entities which are licensed or otherwise authorized by the state. At the present time, the NPDB contains reports of (1) adverse licensure action against physicians and dentists, including revocations, suspensions, reprimands, censures, and probations; (2) adverse clinical privilege actions against physicians and dentists; (3) adverse professional society membership actions against physicians and dentists; and (4) medical malpractice payments made for the benefit of any healthcare practitioner. Under the current law, the entities that are required to make reports to the NPDB are identified as medical malpractice payors, state medical and dental boards, professional societies with formal peer review, hospitals, and other healthcare entities such as HMOs. Currently, groups that have access to information in the NPDB are hospitals, other healthcare entities that conduct peer review and provide healthcare services, state medical and dental boards, and other healthcare practitioner state boards. Individual practitioners can also access information about themselves from the NPDB. The proposed changes would expand the scope of the NPDB by incorporating provisions of Section 1921 of the Social Security Act, which requires each state to adopt a system of reporting to DHHS certain adverse licensure actions taken against healthcare practitioners and entities by any authority responsible for licensing them. The changes would also require states to report any negative action or finding that a state licensing authority, peer review organization, or private accreditation entity has concluded against a healthcare provider or entity. Most significantly, the proposed changes would expand access to the information in the NPDB to all state licensing authorities, agencies administering federal healthcare programs (including private entities administering those programs under contract), state agencies administering or supervising the administration of state healthcare programs, state Medicaid fraud control units, certain law enforcement agencies, and utilization and quality control Quality Improvement Organizations. Federal Register. March 21, 2006;71(54):14135.
NEWS
According to a study to be published in the spring issue of Management Communication Quarterly, nurses receive little training on how to deal with sexual harassment by patients. Such behavior by patients is said to be common, although nurses are protected from this unwanted attention by both state and federal laws, which require hospitals' guidelines to reflect those laws. (Nurses face sexual harassment from patients. http://CNN.com, January 4, 2006).
The Food and Drug Administration (FDA) has issued guidance on hospital bed design to reduce patient entrapment. Entrapment can occur when part of a patient's body becomes caught between parts of the bed, and can lead to injury and death. This guidance identifies issues associated with hospital bed systems and provides design recommendations and suggestions for healthcare facilities on ways to assess existing beds. It also characterizes the body parts at risk for entrapment, identifies the locations of hospital bed openings that are potential entrapment areas, recommends dimensional criteria for new hospital bed systems, provides information about reporting entrapment adverse events, and includes a description of recommended test methods for assessing gaps in hospital bed systems. The FDA reports that it has received approximately 691 reports of entrapment from 1985 to 2006. Of those, 413 people died, 120 were injured, and 158 were near miss events with no serious injury. The guidance is available on the FDA's Web site at http://www.fda.gov/cdrh/beds/.
The Louisiana Attorney General is investigating claims that patients at Memorial Medical Center in New Orleans were euthanized in the days following hurricane Katrina. (Griffin D, Johnston K. New Orleans hospital operator has checkered past. http://CNN.com, March 8, 2006).
CASES
A nurse who complained about sexual harassment should be allowed to go forward with her claim of retaliation against her employer, according to a Federal court ruling in Nevada. The nurse claimed she was subject to sexual harassment by a male respiratory therapist, which she reported to her employer. The therapist was given a disciplinary notice of corrective action and was instructed to cease the harassment and stay away from the plaintiff after an investigation. Following the disciplinary action, the harassment stopped. However, the nurse claimed she became the subject of verbal abuse, disciplinary action, excessive scrutiny, suspension, and termination because of her complaints. These alleged retaliatory actions took place only 2 months after the nurse complained about the harassment. The court felt that the timing of the actions against the nurse raised an issue of fact as to whether the claimed adverse employment action occurred because of her report of the harassment, and that therefore she should be able to go forward with this claim. Moss v Washoe Medical Center (No. 3:04-CV-0267-ECR(RAM), D. Nev. March 1, 2006).
The United States Supreme Court has upheld Oregon's assisted suicide law, in a decision released in January 2006. This decision upheld a decision by the 9th US Circuit Court of Appeals, which determined that the US Attorney General's attempt to regulate general medical practices interfered with the democratic debate over the issue of physician-assisted suicide. The Attorney General, John Ashcroft, had taken the position that physicians who prescribed controlled substances used by the terminally ill to end their lives would be violating the Federal Controlled Substances Act. (Oregon assisted suicide law upheld. http://CNN.com, January 17, 2006).
In an unpublished California case, a Court of Appeals held that a pediatrician who remained at a hospital for several hours because he was informed his assistance might be needed pending a delivery was entitled to statutory immunity under that state's Good Samaritan law from a lawsuit filed by the child's parents. The court rejected the parents' argument that because the pediatrician had an existing informal relationship with the obstetrician and had treated some of his patients before, that established a duty to their infant. Covarrubias v Kady (No. D046529, Cal. Ct. App. March 15, 2006).
A federal appeals court has upheld a lower court's decision striking down a 1999 Missouri law banning certain late-term abortions. This law had been vetoed by then governor Mel Carnahan, and was enacted via a legislative override of the veto. The law banned the procedure known as an intact dilation and evacuation, and was found unconstitutional by the court because it did not contain an exception for the health of the mother. Planned Parenthood v Nixon (13 No. 8 Andrews Health Law Litigation Reporter 3, December 22, 2005).
An appeals court in California has ruled that physicians may not have violated that state's civil rights act when they refused to perform certain fertility procedures for a lesbian because of their personal religious beliefs. North Coast Women's Care Medical Group v San Diego County Superior Court (13 No. 8 Andrews Health Law Litigation Reporter 5, December 22, 2005).
A California appeals court has ruled that claims of physical abuse made against a nursing home are not based on professional negligence, and therefore, a law in that state tolling the limitations period for medical malpractice cases does not apply to such claims. Smith v Ben Bennett, Inc. (13 No. 8 Andrews Health Law Litigation Reporter 9, December 22, 2005).
A New York court has determined that New York University Medical Center cannot be held liable for performing an in vitro fertilization procedure that resulted in the birth of a child affected by autism. The parents sued the hospital for allegedly violating an oral agreement that the procedure would not result in the birth of an autistic child, but the court found that a subsequent written contract contained a disclaimer to the contrary. Scalisi v NY University Medical Center (13 No. 9 Andrews Health Law Litigation Reporter 8, January 25, 2006).
An Appeals Court in New York has ruled that the parents of a child killed by a flying oxygen tank while undergoing an MRI may seek punitive damages against defendants. Colombini v Westchester County Healthcare Corp. (13 No. 9 Andrews Health Law Litigation Reporter 9, January 25, 2006).
A federal court in California has determined that a plaintiff who fell in a hospital's parking lot had no claim under the Emergency Medical Treatment and Active Labor Act (EMTALA) against the hospital. The court held that EMTALA does not require a hospital to use its own personnel to transport a patient injured on its premises to the emergency department. This patient was driven by her daughter to the hospital for an appointment, and fell upon getting out of her car, breaking her hip. The fall occurred about 30 yards from the hospital's emergency room. The hospital's parking attendant called the facility's security department, which refused plaintiff's request for medical attention and called 911. The ambulance did not arrive for almost an hour, and when it did arrive, it transported the patient 30 yards to the emergency room. The patient sued the hospital on several grounds. She claimed that the hospital's refusal to move her from where she fell to the emergency room caused a delay that made her injuries worse. She also claimed premises liability and personal injury. She also sued the city and county in which the hospital was located, and claimed that the hospital violated EMTALA by its refusal to transport her from the parking lot into the emergency room. The court noted that the patient did not claim that the hospital failed to provide her with medical care nor that it failed to stabilize her before discharging her. The records showed that she received care once she was in the emergency room. The court noted that EMTALA does not require a hospital to use its own personnel to transport people requesting services from the parking garage to the emergency room nor does it require the hospital to send emergency room personnel to a parking lot to screen and stabilize a person requesting emergency services. Addiego v City and County of San Francisco (No. C 05-04819 CRB, N.D. Cal. February 17, 2006).
LEGISLATION
The governor of Wisconsin has signed into law that state's assembly bill 1073, which caps noneconomic damages in medical malpractice cases at $750,000. In July of 2005, that state's supreme court struck down a cap on noneconomic damages set at $445,775, criticizing it for being unreasonably low and lacking a rational basis.
A nurse-to-patient ratio law has been introduced in the Illinois legislature. This law is similar to the law in California, which has been the subject of much court action over the last year. (Evans M. Nurse-ratio fight goes national. http://Modernhealthcare.com, March 13, 2006).
Legislation has been recommended by the Illinois Attorney General which would require nonprofit hospitals to spend 8% of their operating expenses on charity care in order to maintain their property tax exemption, as well as legislation that would mandate consumer protections related to nonprofit hospital billing and collection practices. Watch this column for updates on the status of this legislation.
Federal legislation has been introduced which addresses nurse staffing and patient ratios. The Registered Nurse Safe Staffing Act (Senate) and the Quality Nursing Care Act (house of representatives) would end mandatory overtime and would prohibit floating nurses to specialty units, unless they have had training and orientation. In addition, they would establish a requirement for minimum staffing ratios that ensures a number of registered nurses on each shift and in each unit of the hospital for appropriate staffing levels for patient care, would require public reporting of staffing information and daily posting of the number of licensed and unlicensed staff providing direct patient care on each unit and each shift, and would provide whistleblower protection for personnel who file complaints regarding staffing. Watch this column for updates on the status of this legislation.
VERDICTS/SETTLEMENTS
The litigation over the allegations of unnecessary heart surgeries at Redding Medical Center has finally resolved, with 4 heart surgeons agreeing to pay $32.5 million to federal and state health insurance plans and to victims of allegedly unnecessary procedures. United States v Tenet Healthcare (13 No. 8 Andrews Health Law Litigation Reporter 7, December 22, 2005).
A jury has granted the biggest civil award in Connecticut history to a child who alleged that the obstetrician and the hospital involved in his birth were negligent, resulting in cerebral palsy. The award totaled $36.5 million. [Jury awards $36.5 million to cerebral palsy victim (13 No. 8 Andrews Health Law Litigation Reporter 8, December 22, 2005).
The Department of Justice has reached a consent decree with a West Virginia hospital to terminate an agreement with HCA, Inc. that would prevent HCA from developing a cardiac surgery program in Raleigh County, West Virginia. In exchange for that agreement not to compete, the West Virginia hospital promised to support 2 unrelated HCA programs in other parts of the state. The government had filed a civil lawsuit alleging that the agreement was in violation of the Sherman Act, which will be resolved if the consent decree is approved by the court. The government's lawsuit asserted that the agreement unreasonably restrained competition to the detriment of consumers by ensuring that no hospital in the area would compete to provide cardiac surgery services. (DOJ Press release, Justice Department Requires West Virginia Medical Center to End Illegal Agreement, February 6, 2006).
A nurse executive formerly in charge of the Visiting Nurse Association of Central New Jersey will go to prison for 15 months, and will have to pay a total of over $930,000 in restitution for his part in a $900,000 scheme to defraud government and private insurers. United States v Caruso (11 No. 8 Andrews Health Care Fraud Litigation Reporter 6, February 7, 2006).
The University of Medicine and Dentistry of New Jersey has agreed to adopt corporate reforms and return almost $5 million received from Medicaid through allegedly false billing in order to avoid criminal prosecution for healthcare fraud. United States v University of Medicine & Dentistry of New Jersey (11 No. 8 Andrews Health Care Fraud Litigation Reporter 7, February 7, 2006).
The federal government is suing Ohio Valley General Hospital in Western Pennsylvania, alleging that it cheated Medicare and other government health programs out of hundreds of thousands of dollars in a false billing scheme, and seeking $2 million in damages. United States v Ohio Valley General Hospital (11 No. 8 Andrews Health Care Fraud Litigation Reporter 8, February 7, 2006).
A former manager of a San Francisco area Medicare provider has been charged with healthcare-related computer theft. He allegedly stole the electronic records of 20,000 patients. United States v Harris (11 No. 8 Andrews Health Care Fraud Litigation Reporter 11, February 7, 2006).