By Jerri Lynn Ward, esq., Garlo Ward, P.C. with Interviews with Rose Ireland, Texas Association of Homes and Services for the Aging; and L. Eric Friedland, esq., Martin & Friedland, P.C.
Posted June 27, 2002
We live in the most litigious society in the world. The effect is corrosive to the human spirit and to attempts to improve the human condition. This is demonstrated day after day by television pundits and trial lawyers as they continually engage in the “blame game.” Each day, you see pundits on the television arousing indignation about some failure or mistake made by politicians, business men and former presidents, while representatives of these public figures respond with excuses and justification.
What you never hear, however, is reasoned analysis and discourse about what was learned from those failures and mistakes or what to do to avoid similar errors in the future. The result is fear, denial and an environment that discourages improvement. This is because improvement requires honesty about what did not work and why. As Buckminster Fuller, the great philosopher and inventor, pointed out, human beings learn from mistakes. The result of punishing errors with criticism, fines and punitive jury verdicts is inertia. Who wants to remedy anything if mere discussion of it causes you to face harsh consequences?
The long-term care industry has been victim to this malady for years. There is legitimate fear that a public, open and honest discussion about quality improvements needed in a facility will bring down a horde of regulators and trial lawyers. So, how do you engage in continuous quality improvement without becoming a target? Quite simply, you use the means that have been provided by legislators and courts who understand health providers’ need for confidentiality of analysis and investigations made with the aim of quality improvement. In nursing facilities, this is called the Quality Assessment and Assurance Committee.
As you know, the regulations require that you have such a committee and acknowledge that TDHS may not require disclosure of the committee’s records, except to the extent that you demonstrate that the committee meets, identifies issues, and implements appropriate plans of action to correct any identified quality deficiencies. However, the purpose of such a committee can be much more helpful and profound than this strict definition.
Quality assurance committees in long term care facilities have protection in the Health and Safety Code. In that Code, the committees are referred to as Medical Committees or Medical Peer Review Committees. In general, proceedings and records of this committee are confidential, and communications made to it are privileged. Therefore, with some exceptions, a record or determination made by or a communication made to that committee is not subject to subpoena or discovery and is not admissible as evidence. Because of the requirement under the regulations that nursing homes have Quality Assessment and Assurance Committees, the medical committee in nursing homes is referred to this way or as QAAC.
The purpose of a QAAC is much more complex than just to fulfill the regulatory requirement to have one. The QAAC is a powerful tool to oversee and improve your systems without fear that you will become a target for regulators and trial attorneys. The key to this is that every time you investigate a quality issue – and every issue in a facility impacts quality – you investigate it through your QAAC and take advantage of the confidentiality privilege.
In an effort to help you better utilize your QAAC and protect the information it obtains, this article includes interviews with Rose Ireland with Texas Association of Homes and Services for the Aging; Jerri Lynn Ward, esq. with Garlo Ward, P.C.; and L. Eric Friedland, esq. with Martin & Friedland, P.C.
Rose Ireland is the Director of Clinical Services for the Texas Association of Homes and Services for the Aging (TAHSA). She also serves as a nurse consultant, a trainer and an educator. She received a degree in nursing at the University of Texas at Austin and went on to build 20 years of experience working with long-term care facilities, including supervision, direction, direct services and program development.
Q: Rose, we all know that the regulations require that facilities have Quality Assessment and Assurance Committees, but would you agree that there is a more profound reason for having a QAAC?
A: Absolutely. Every good nurse I know believes that the sole reason for being a nurse is to advocate for the residents/patients. The QAAC is the safest and most ideal way for nurses to advocate for residents by identifying and fixing broken systems.
Q: Would you please explain the importance of having systems in place in a nursing home and the QAAC’s role in overseeing and improving these systems?
A: It’s like this: our physical bodies have systems such as respiratory, neurological and gastrointestinal systems. A nursing facility is rather like our bodies. It has systems too. They are nursing, dietary, housekeeping, human resources, etc. Just like we have to watch our bodily systems (Dizziness? Diarrhea? Toothache?), so too do we have to watch the nursing facility systems (Insufficient staff? Poorly trained staff? No fresh fruit? Leaky roof?)
Managing by systems instead of intuition creates a rudder for the facility, which is essential to navigate through times of trouble. This concept is part of the whole Continuous Quality Improvement (CQI) principles set forth by W. Edwards Deming. Generally speaking, people do not wake up in the morning thinking, “How can I do a bad job today?” If something adverse happens, we should look first at what system was broken, and not lay blame on a person. Sometimes we set our nurses and other staff up for failure without even realizing it. Laying blame has a terrible impact on morale and thus on recruitment and retention.
Q: Which systems of a facility should be subject to QAAC oversight?
A: All of them, but start with the 14 items in the Quality of Care chapter of the state rules. Add any remaining Texas Department of Insurance nine focus areas or Texas Department of Human Services three Quality Initiative areas. Also, include Infection Control (facility-wide), deaths, documentation, risk management, educational issues, human resources, physical plant, food, laundry, housekeeping, staff complaints, resident/family complaints, etc. As issues come up, create a method to collect data and monitor (track and trend), then intervene as necessary.
Q. I know that you have consulted with numerous facilities over the years. Have you noticed any common gaps in what facility Quality Assessment and Assurance Committees were assessing that should be addressed?
A: Most facilities have been used to the QAAC being a “paper compliance.” They really did not understand how to go about making the Committee a functional part of the whole operation. Now that we have been bull-dozed by plaintiffs’ attorneys, our attention is more front and center and on risk management as well as quality care. A few of the areas that are often not addressed are staff complaints, deaths, documentation, data entry of MDS and staff credentialing.
Q: Have you seen facilities make any mistakes vis-a-vis the survey process with Quality Assessment and Assurance Committee materials?
A: Oh, yes. Many facilities do not understand that they do not have to reveal their data. All they have to be able to show the surveyors is:
- Who met (the rules specify who must be on the team)
- When (must meet quarterly)
- What was discussed (e.g. falls, elopements, cold food)
- What was the planned intervention (does it appear to be appropriate to the stated issue?)
- And come back the next quarter and show whether it worked or not.
The above information can all be fit into one form, and sometimes one page.
The QAAC actually functions for the facility like the interdisciplinary care plan team functions for the resident.
Q: How should nursing facilities’ Quality Assessment and Assurance Committees transmit information to TDHS surveyors to stay in compliance?
A: Generally the surveyors will not ask about the QAAC unless there appear to be systemic problems that the facility has either failed to recognize or failed to address. Give the surveyors information about the QAAC only if they ask for it, and in that case, give them only the “cover” sheet with the information shown above.
Q: Once the QAAC comes to conclusions about how to improve quality in a particular area, how can the QAAC give important information about how and why changes and improvements need to be made to others in the facility, such as CNAs, nurses, housekeepers and dietary staff members who are not on the committee without waiving the privilege?
A: In-service education is the most common way. Don’t forget that in-service education can be one-on-one, and can be in a classroom, on the floor, out of the building, etc. Take credit for what you do. Also stress that all employees are part of the team and extensions of the QAAC. Also, I have found that using the facility floor plan is an effective tool for tracking and trending. Use of different colors of ink can specify different shifts. This type of visual reminder does not use resident names, and does not have to stay on a bulletin board for a long period of time.
Co-founder of Garlo Ward, P.C., Jerri Lynn Ward provides legal representation in the areas of business and commercial litigation, including complex healthcare and regulatory litigation, and health facility operational matters. Her background and prior experience includes litigation work in the areas of insurance defense, employment, toxic tort, products liability, medical malpractice, business and commercial, as well as criminal matters.
Jerri’s current practice also includes legal representation and counseling in health care and general civil and administrative law, including fraud and abuse. She works with health care facility and individual providers in federal and state court matters and before government regulatory agencies and boards.
Q: How can facilities actively engage in quality improvement and document those active files without the risk of plaintiffs’ attorneys gaining ammunition for liability suits?
A: First, I agree with Rose that the purpose of Quality Assessment and Assurance Committees is not to hide the ball, but rather to continuously improve quality. I agree that the facility itself is a patient to the Quality Assessment and Assurance Committee and that all systems must be constantly monitored and treated when necessary.
I also acknowledge that without complete confidentiality of deliberations and assessment, people are not especially motivated to engage in continuous quality improvements. Facilities fear that openly discussing problems that may exist in the facility invites a lawsuit or regulators to cite deficiencies. The legislators and courts have recognized this by allowing health care providers, including extended care facilities, to have medical committees. The deliberations, evaluations, documents reviewed, and documents created by such a committee are safe (with some exceptions) from subpoena and discovery by plaintiffs’ lawyers and from being obtained by licensing entities such as TDHS.
Q: What kind of documentation is protected by the Quality Assessment and Assurance Committee privilege?
A: The kind of documentation protected by Quality Assessment and Assurance Committee privilege includes records and proceedings in that committee. This has further been defined by case law specifically as those documents that memorialize the Committee’s investigation of the assessment of quality issues. The privilege would include documents that are created by the Committee as part of its investigation and documents that are submitted to the committee to hasten its investigation analysis and decision-making.
Documents not protected are records or documents made or maintained during the regular course of business by an extended care facility. Thus, the written investigation reports required by TDHS pertaining to allegations of abuse and neglect would not be covered by this privilege. However, it is arguable that some of the documentation used to create the written report could be protected. In the area of abuse and neglect, I maintain that investigations into how to prevent abuse and neglect in the facility and the deliberations made as a result of these investigations by the Committee would certainly be privileged.
Another example is the records required under infection control. Certain basic information is required to be given to TDHS regarding infection control and what was done about those incidents. However, an investigation of how to improve infection control that is done under the auspices of the QAAC would be subject to the privilege.
It is very important for a facility to look at its policies and the types of records that its policies and procedures require it to keep. If there is a type of record that would more likely fit under an investigation of quality, then any mention in the policy of keeping records in the regular course of business should not be in the facility policies and procedures.
This is particularly important when it comes to deciding if an adverse occurrence is an incident that needs to be called in or is a quality management issue. For the definition of “incident,” we go back to the regulations at Section 19.101. An incident is defined as “an abnormal event, including accidents or injury to staff or residents, which are documented in facility reports. An occurrence in which a resident may have been subject to abuse, neglect, or exploitation must also be reported to TDHS.
Q: How can a Quality Assessment and Assurance Committee maintain the integrity of the privilege?
A: The integrity of the Medical Committee and Quality Assessment and Assurance Committee privilege is best maintained by not allowing third parties unassociated with the Committee to have access to these materials. Therefore, you must keep all these materials separate in a big Quality Assessment and Assurance Committee notebook. Also, before submitting any kind of written reports, IDRs or other documents to TDHS, check the documentation and do not submit any materials that were created or utilized by the Quality Assessment and Assurance Committee.
You may have to run a benefit vs. risk analysis with regard to this. If you believe that you have an opportunity to exonerate the facility in any kind of investigation, it may be in your interest to submit materials that are truly quality assurance materials subject to a privilege. It may be beneficial in such a case to make a clear delineation between those and any written report required under the law, and stamp “Quality Assessment and Assurance Committee Privileged Documents” on the appropriate portions. It is possible that a court will say that you have waived that privilege or that those records are required to be submitted anyway and therefore not subject to the privilege, but you will never know until you try it. The Austin Court of Appeals delivered a decision that was released for publication in January 2002 that emphasizes the importance of segregating documents in which there is a claim of confidential information for in-camera inspection by the court. What I glean from this decision is that if you are submitting materials that you truly believe are privileged but you think are important to submit for defensive reasons, clarify and communicate that through stamping those particular materials as QAAC Privileged Documents.
Q: How should Quality Assessment and Assurance Committees conduct investigations into quality issues?
A: First, the QAAC may use sub-committees that address certain particular systems such as infection control or falls, etc. Second, it is important that there is clarity of communication that documents created and gathered other than those records kept in the regular course of business are being done so for quality assurance. Likewise, all deliberations and detailed planning should also be clearly designated as part of the quality assurance committee investigations and deliberations.
Remember, the information you need to provide to TDHS with regard to the Quality Assessment and Assurance Committee is very limited. All you are required to tell them is how often the Quality Assurance Committee met (and prove it with documentation), the issue(s) the committee addressed and the actions taken. The investigation into the issues and deliberations used to determine what course of action should be taken should not be given to TDHS, nor is TDHS entitled to it. This is also true with regard to plaintiffs’ lawyers in liability cases in which there is a subpoena or discovery request.
One topic that continually arises is the question of whether written statements should be taken from nurses and CNAs during an investigation. The primary investigator can document interviews with staff and make it a very thorough investigation. There is no requirement for written statements.
In most instances, I believe that it is better for someone with the Quality Assessment and Assurance Committee to conduct investigations and to recount the statements made by witnesses in the written report, rather than having witnesses write their own statements. Again, with regard to the requirements pertaining to investigations of abuse and neglect, the regulations state nothing about attaching written signed statements by employees. Moreover, when surveyors come into the facility and request that an employee write a statement, that employee needs to understand that the statement could possibly be used against him or her in criminal proceedings. Staff need to be taught that they are free to write a statement as well as free to refuse to write a statement, and that they are free to be interviewed alone or with support from their director of nurses or administrator. The staff member has the right to choose and should not be bullied by surveyors.
Q: What are the threats to the privilege in the context of a liability lawsuit?
A: Quite frankly, the threat to the privilege in the context of a liability lawsuit is waiver of the privilege. This could come about if you do not keep the reports, deliberations and documentation reviewed by the Quality Assessment and Assurance Committee (documentation that is not business records kept in the usual course of business) segregated. If a document is not clearly marked and segregated, and is sent to your defense attorney in that condition, it could be passed on to a plaintiff’s attorney because of a failure to communicate the nature of the documentation.
Also, if you do not keep the documents in a separate binder or file marked “Quality Assurance,” and that notebook or file is available to persons not on the committee, then you have waived the privilege. What that can mean is that when a plaintiff’s attorney obtains information that shows QAAC discussions, evaluations, assessments, and deliberations regarding problems and issues, he or she can possibly get this information into evidence to bolster the plaintiff’s case claiming that it is an admission of negligence.
L. Eric Friedland is a partner in the San Antonio, Texas firm of Martin & Friedland, P.C. The firm’s practice focuses mainly on litigation with an emphasis on nursing home litigation. Mr. Friedland attended the University of Texas in Austin as an undergraduate and went to work for Hilton Hotel Corp. He then worked for the Texas Health Care Association f/k/a Texas Nursing Home Association as Special Projects Director before attending law school at St. Mary’s School of Law, where he was a member of Phi Delta Phi legal fraternity and an articles editor for the St. Mary’s Law Journal.
Mr. Friedland serves as General Counsel for a non-profit nursing home in San Antonio, and along with his partner, Terrence Martin, represents nursing homes across Texas. Martin & Friedland, P.C. also represents commercial litigants, injury-related litigants and clients with transactional issues.
Q: Eric, you have a great deal of experience in defending nursing homes in liability lawsuits. Have you seen issues come up with regard to the Quality Assurance privilege?
A: Generally speaking, issues relating to the Quality Assurance privilege have not come up frequently in our firm’s cases due to a couple of reasons. First, the Quality Assurance privilege has been fairly well established by the statutory authority and case law. As described earlier, the fact that the Quality Assurance committee meets, identifies issues and implements plans of action to correct identified deficiencies often is referred to in discovery between the parties and such is enough information to satisfy a discovery request. Second, nursing home litigation practitioners on the plaintiff’s side of the bar are often experienced and sophisticated enough to know that Quality Assurance inquiries will be resisted upon the assertion of the privilege. Accordingly, they tailor their requests to avoid the issue.
Q: Have you seen information gathered by facilities that should have been gathered through a Quality Assurance committee? What happens to information like that during the discovery process in a lawsuit?
A: Yes. Sometimes in the context of an incident investigation, a thorough review of policies and procedures coupled with specific references to residents, staff personnel, healthcare providers (doctors, nurses, therapists, pharmacists, etc.) are included in the fact-gathering process of a facility. Hindsight may show that a lot of such information would be better addressed in the Quality Assurance context. When information that belongs in the Quality Assurance context is not kept there, it can lead to an embarrassing conflict between deposition testimony and the information itself without first being filtered through the appropriate litigation process by the facility’s attorney. Further, such information, if not protected by the Quality Assurance privilege, can lead to an ever-widening scope of injury, in turn resulting in increased costs, potential new areas of liability (causes of action) and even new lawsuits by other parties.
Q: Can you give us a few examples of mistakes made or misunderstandings on the part of facilities with regard to the Quality Assurance privilege?
A: One mistake on the part of facilities is that they believe that if they simply mark everything they do administratively as “Quality Assurance” then nothing will be discoverable. That plan always backfires because judges are usually quick to agree that not everything a facility does is privileged. Further, facilities should be careful to define the role and scope of the Quality Assurance Committee. An extremely broad scope will result in the problem described above. An overly narrow scope will hamper the committee’s ability to make meaningful changes to policies and procedures. A balance must be in place to ensure thorough investigation and follow up.
Participants in the in Quality Assurance must always act with recognition that their work product is privileged so they can be thorough and frank. However, they cannot expect a total blanket privilege over every facet of their role unless they take all necessary steps to ensure the privilege exists and is not waived. A misunderstanding on the part of facilities is that their counsel may simply object to interrogatories or other discovery on the basis of a privilege. The “new” Texas Rules of Civil Procedure provide that when asserting a privilege, a party must specifically respond by stating that it is withholding information on the basis of the Quality Assurance privilege, and that said information may be responsive to a discovery request. Then, the requesting party may seek a privilege log. If so, the responding party should provide a log describing in general terms the nature of the withheld information. Then a hearing may be held to determine the propriety of the assertion of the Quality Assurance privilege to the subject information. Often an in-camera inspection of the information will be held so the judge may determine the applicability of the Quality Assurance privilege.
As stated earlier, experienced litigators will usually view a privilege log and know at that time whether or not to pursue a hearing. Their experience will likely tell them when information is really “Quality Assurance” and that they are not entitled to it and a hearing on the matter is unnecessary. Close calls are the ones that wind up in front of judges and often result in disclosure (production) of the information to the requesting party.
Q: Do you have any general suggestions as to what facilities can do to avoid these mistakes?
A: To avoid such mistakes, a facility should follow the advice given earlier in this article by Ms. Ward. Have a formal Quality Assurance Committee that regularly meets to discuss pertinent issues. Educate the staff about what the Quality Assurance Committee does, why it exists and why it must remain confidential. Have an attorney present at the Quality Assurance meetings to add the attorney-client privilege on top of the Quality Assurance privilege. Keep the scope of the Quality Assurance meetings and the information they generate as narrow and well-defined as possible. That way, there hopefully will not be any close calls that require judicial review and disclosure of information that could undermine the spirit and purpose of Quality Assurance.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
