New Jersey law expands reporting of medical errors
■ The law shields both actual and near mistakes from legal discovery.
By Andis Robeznieks — Posted May 17, 2004
A conversation about medical liability reform between the head of the New Jersey Dept. of Health and Senior Services and a state senator reportedly led to a new state law that shields analysis and discussions of medical errors from legal discovery.
"They were talking about the medical malpractice insurance crisis and how they can help doctors, when someone said 'Why don't we get to the meat of the problem: Reducing medical errors?' " said Laurie Cancialosi, chief of staff for state Sen. Joseph Vitale, sponsor of the New Jersey Patient Safety Act. "So that conversation was the impetus for this."
The new law allows for more open discussion of why medical errors occurred and how to prevent them from happening again. Some experts, however, are saying that the impact of medical-error reporting laws is unknown and underreporting remains a serious issue in many states.
The New Jersey law, enacted April 27, calls for reporting "serious, preventable adverse events" to the state and to patients or family/guardians.
It also allows for confidential, anonymous reporting of near misses, and shields analysis of the errors and near misses from being used as evidence. Although private medical practices are excluded, the law extends beyond the traditional hospital setting to include outpatient clinics, nursing homes and diagnostic centers.
Except for private practice physician offices, New Jersey "health care facilities" must create patient-safety plans and assemble patient-safety committees. It will be the committees' job to analyze errors and near misses, look for ways to apply evidence-based patient-safety practices and conduct staff patient-safety training.
Medical Society of New Jersey spokesman John Shaffer said the law's requirements will create a burden for doctors, but came with a compromise that shielded error analysis and discussion from discovery.
"We acknowledge that it creates more responsibility for physicians, but we accept that for two reasons: One, it's the right thing to do to work on the systems to prevent future medical errors; and two, in the fight for medical liability and tort reform, there has to be some acknowledgment that you have to meet in the middle," Shaffer explained. "When you look at the flipside, that they almost made this discoverable, we'll take the extra reporting burden."
New Jersey becomes the 18th state to enact such a shield. According to the New Jersey Hospital Assn., before the passage of the law, New Jersey and Kentucky shared the distinction of having the weakest legal protection for quality-improvement reporting, leading to an environment where there was little willingness to engage in candid discussions about errors.
National Conference of State Legislatures Program Manager Kala Ladenheim said the New Jersey law signals a swinging of the patient-safety pendulum, which had moved toward a blameless environment that looked at aggregate data and systems. She said the pendulum is now swinging slightly back to analyzing individual events, but with a different style.
"When I first got in this field in the '70s and '80s, it was totally shame and blame," she said. "You'd have to stand up and say 'This is what I did wrong.' "
While 21 states have some type of mandatory reporting system for medical errors, a report issued last fall by the National Academy of State Health Policy concluded: "There is no evidence to show what level of data disclosure advances the patient safety agenda," and underreporting of errors limits the accuracy of the data.
"The data is not as good as it needs to be, and that's a real concern," said Jill Rosenthal, one of the study's authors and a NASHP project manager. "A couple of states are really having budget crises, and they don't have the resources to do anything but collect the data. Collecting the data, but not using it, is not very useful."