Protecting and Disclosing Proactive Risk Assessments David M. Sine, CSP, ARM SafetyLogic Systems Austin, TX 512-351-

2. Protecting Proactive Risk Assessments Proactive Risk Assessments include but are not limited to: FMEA (PI.3.20) RCA (PI.2.30) Hazard Surveillance Rounds (JCAHO EC.1.20) Hazard Vulnerability Analysis (EC.4.1 and EC.1.10) Any analysis of claims, occurrences, or incidents

3. RM Questions to Consider Will the risk assessment documentation you are about to generate be discoverable? Admissible? Why? In terms of evidentiary protection, what is the best way to handle risk assessment information? Going forward, what should be done in terms of evidentiary protection for risk assessments? Why?

4. The Risks of Risk Assessments Does the terminology: �FAILURE� discourage use of FMEA? Is there fear that FMEA or RCA is an admission of guilt or incompetency? Is there fear that the FMEA or RCA or hazard assessment will be DISCOVERABLE AND ADMISSIBLE in court and other legal proceedings?

5. Risk Assessments: Discoverable and Admissible? DISCOVERABLE � plaintiff seeks information through interrogatories, depositions, and requests for production ADMISSABLE � a legal determination that the information can be presented as evidence

6. But a risk assessment is �protected��. Only if���. It is generated under a recognized form of evidentiary protection It is used under a recognized form of evidentiary protection.

7. There is no federal protection!

8. A risk manager�s risk assessment solution Do the assessment (RCA, FMEA or other) Design the assessment with potential discovery in mind Avoid using $$$$ as a criteria in the assessment for loss control � use quality indicators (clinical severity) Teach individuals how to properly prepare and use risk assessments under whatever protections are available

11. PROBABILITY RATING: Frequent - Likely to occur immediately or within a short period (may happen several times in one year) Occasional - Probably will occur (may happen several times in 1 to 2 years) Uncommon - Possible to occur (may happen sometime in 2 to 5 years) Remote - Unlikely to occur (may happen sometime in 5 to 30 years)

13. Medical DisclosureRI.2.90 �Patients and when appropriate their families are informed about the outcomes of care , treatment, and services, including unanticipated outcomes.� Are investigations done in response to unanticipated outcomes protected if disclosed as required by RI.2.90?

14. Medical Disclosure Disclosure Elements

15. Medical Disclosure Content of Disclosure

16. Protecting and Disclosing Proactive Risk Assessments Summary: Both FMEA and RCA can be protected if precautions are taken Precautions are state specific Disclosure of unanticipated outcomes and sentinel events may open the door to discovery Disclosure can be managed and protected as can RCA and FMEA if you have a plan

17. Protecting and Disclosing Proactive Risk AssessmentsQuestions?