A provision in Vermont law that shields reported egregious medical events from the public is drawing fire.
Under the Patient Safety Surveillance and Improvement System, some of the most tragic medical mishaps remain hidden from public view. Under this system, Vermont hospitals have to report events like surgeries performed on the wrong body part or the wrong patient along with any intentional unsafe acts. While the state has this information, it is exempt from state public records laws and immune from subpoena and discovery in court.
On Thursday, the state Public Records Legislative Study Committee took a step toward what could mean shedding light on this information. The committee recommended that a jurisdictional committee take up the issue to see if statistical information can be made public without divulging personal information.
In testimony to the committee, Dixie Henry, principal assistant to the commissioner of the Department of Health, said the number of egregious mistakes in Vermont are so small that releasing even aggregate information would result in an invasion of privacy for patients.
“The idea is to encourage adverse event reporting in hospitals,” Henry said.
In fact, releasing this information, according to testimony for the department could violate patient privacy under the federal Health Insurance Portability and Accountability Act.
The exemption — one of 22 health care-related exemptions on the table Thursday — presents a quagmire for legislators. On the one hand, releasing the information could result in a violation of patient privacy. On the other hand, the state has information that concerns the public, but the public cannot access it.
The public records exemption is far from going away. The study committee merely makes recommendations. Once the legislative session starts, another committee would have to hear testimony on the issue.
The reluctance to divulge even the aggregate numbers of extremely bad incidents is part of what ACLU Vermont Executive Director Allen Gilbert calls a seeming “obsession with protecting hospitals.”
“People really want to know if hospitals are providing care that keeps people well,” Gilbert said. “If there’s some sort of disease that’s uncontrolled in hospitals people need to know and should be able to find out.”
Gilbert said another issue involves the public agency collecting information that concerns public.
The Vermont Department of Banking, Insurance, Securities and Health Care Administration collects reports of 28 “serious reportable events.” The hospital conducts a causal analysis, develops a corrective action plan and files this information with the state. While evaluations like Hospital Report Cards that compare hospital performance are available on the BISHCA Web site, the most serious events are not.
One reason to block public access to that information is to encourage hospitals to report events that could have resulted in dire consequences but did not, said Rep. George Till, D-Jericho, a practicing physician who sits on the House Committee on Health Care.
“If it’s all public, there’s going to be some hesitance to report sentinel events that could lead to harm,” Till said. Hospitals could be reluctant to report potentially dangerous incidents because of fear of a public backlash.
The issue with egregious accidents, Till said, is that they are really rare events. For this reason, “it’s impossible not to identify the person,” he said. Because Vermont is such a small state and such problems are so rare, proponents of the exemption say even releasing the information with personal information redacted will divulge the patient’s identity.
Sen. Peg Flory, R-Rutland, sits on the Public Records Legislative Study Committee. She said the issue with whether to make egregious hospital mishaps public creates a tension.
“If you have a doctor who’s amputated the wrong leg more than once, you think the public ought to know about it,” Flory said.
Along with the concerns about protecting patient privacy, Flory said, identifying which hospital had a “reportable event” would be extremely damaging to its reputation. Since the patient’s information would be exempt, the medical provider would likely have a tough time explaining what went wrong. In the court of public opinion, at least, this could be disastrous to a reputation, Flory said.