PA 10-122—sSB 248

Public Health Committee

Judiciary Committee

AN ACT CONCERNING THE REPORTING OF ADVERSE EVENTS AT HOSPITALS AND OUTPATIENT SURGICAL FACILITIES AND ACCESS TO INFORMATION RELATED TO PENDING COMPLAINTS FILED WITH THE DEPARTMENT OF PUBLIC HEALTH

SUMMARY: This act amends the state's adverse event reporting law by requiring that the Department of Public Health's (DPH) annual report to the legislature on adverse events include, for each hospital and outpatient surgical facility (“facility”), aggregate information about adverse events identified at the hospital or facility. It also (1) requires the report to include contextual information about the hospital or facility and (2) allows these entities to provide informational comments relating to the adverse event reported, which must be included in DPH's annual report.

The act prohibits a hospital or outpatient facility from taking certain actions against an employee, job applicant, or provider for actions the individual takes to further provisions of the adverse event law.

It requires DPH to give patients access to information if they have filed complaints with the department alleging incompetence, negligence, fraud, or deceit by health care providers. It requires DPH to give the patients notice about their complaint's status and disposition. It also requires mandatory mediation for all civil actions involving allegations of negligence by health care providers resulting in personal injury or wrongful death.

The act also makes technical changes.

EFFECTIVE DATE: July 1, 2010, except for the provisions on patient complaints, which are effective October 1, 2010.

ADVERSE EVENT REPORTING

Reportable Events

By law, hospitals and outpatient surgical facilities must report adverse events to DPH on a specific department form and within seven days after the event occurs. Separate reports must be submitted for each adverse event that affects a patient while in the facility. An adverse event is any event that is identified on the National Quality Forum's (NQF) “List of Serious Reportable Events” or on a list compiled by DPH. NQF's list includes 28 events in six major categories that may occur in hospitals and outpatient facilities. DPH has added five Connecticut-specific adverse events to the NQF list.

The reporting form asks for:

1. facility information (type of hospital, i. e. , general, children's, chronic disease, mental health, maternity, or outpatient surgical facility);

2. patient information, including the date and time of the adverse event and when it was first known;

3. the location of the event (e. g. , emergency room, operating room, outpatient setting, surgical unit, neonatal intensive care);

4. notifications made (to patient, other state agencies, local or state police, others);

5. a description of the adverse event (e. g. , event facts and status of the patient's condition, immediate plan of action to reduce the risk of a similar event); and

6. a corrective action plan (a plan must be filed within 30 days after any adverse event occurs).

After screening an adverse event report, including a corrective action plan, DPH determines whether to initiate an investigation. The act specifies that corrective action plan strategies reflect evidence-based best practices.

Reporting of Adverse Events

DPH must report annually by October 1 to the Public Health Committee on adverse event reporting. By law, the information collected on adverse events is not disclosed under the Freedom of Information Act and is not subject to subpoena, discovery, or introduction into evidence in any judicial or administrative proceeding except as specifically provided by law. Under prior law, DPH's report did not identify specific hospitals, outpatient surgical facilities, or individuals with reported adverse events. The annual reports listed adverse events by (1) frequency of occurrence based on the NQF and DPH's Connecticut-specific lists of adverse events and (2) facility type, patient age, and facility location.

The act instead requires that DPH include in its annual adverse event report submitted on or after July 1, 2011, hospital and outpatient surgical facility adverse event information for each entity identified by the (1) NQF list of serious reportable events category and (2) DPH's Connecticut-specific list.

The reports must be prepared in a format that uses relevant “contextual information. ” This includes the relationship between the number of adverse events and a hospital's total number of patient days, or an outpatient surgical facility's total number of surgeries, expressed as a fraction. The numerator is the aggregate number of adverse events reported by each hospital or outpatient facility by category and the denominator is the total of the hospital's patient days or outpatient facility's total number of surgeries. “Contextual information” also means information concerning the population the hospital or facility serves, including its payor or case mix.

The act also allows a hospital or facility to provide additional comments concerning any reported adverse event. Beginning July 1, 2011, any DPH adverse event report must include these additional comments.

Employee Protection

The act prohibits a hospital or facility from discharging, refusing to hire, refusing to serve, retaliating in any manner, or taking any adverse action against an employee, job applicant, or health care provider because that individual takes action to further enforcement of the adverse event law.

COMPLAINTS PENDING IN DPH AGAINST HEALTH CARE PROFESSIONALS

By law, DPH is the licensing and regulatory agency for a number of health care professions. In most cases, the law makes information concerning complaints (petitions) against physicians confidential for 18 months, and forever if the department finds no probable cause or permits the physician to enter a rehabilitation program. For all other health care professionals, petitions are confidential for one year. They may be disclosed earlier if (1) the petition is withdrawn or there is some other informal disposition or (2) DPH mails or serves a probable cause determination on them before the one-year confidentiality period expires.

The act gives individuals access to information if they have filed, on or after October 1, 2010, petitions alleging incompetence, negligence, fraud, or deceit.

Information Available to a Person Filing A Complaint

The act requires DPH to provide any complainant who asks with information on the complaint's status. The person must also be given an opportunity to review, at DPH, records compiled as of the date of the request pursuant to any investigation of the complaint. This includes the respondent's written response to the complaint, except that the individual cannot copy the records and DPH cannot disclose (1) information concerning a health care provider's referral to, participation in, or completion of an assistance program for chemical dependency, emotional or behavioral disorder, or physical or mental illness, that is confidential; (2) information not related to the specific complaint, including information concerning other patients; or (3) personnel or medical records and similar files that, if disclosed, would be an invasion of personal privacy under the Freedom of Information Act, except for those records or similar files solely related to the complainant.

Under the act, DPH is not required to disclose any other information that is otherwise confidential under federal or state law, except for information solely related to the complainant. DPH can require up to 10 business days written notice before providing the review opportunity.

The act requires DPH, before resolving the complaint with a consent order, to give the person filing the complaint at least 10 business days to submit a written statement as to whether he or she objects to resolving the complaint with a consent order.

If a hearing is held on the complaint after a finding of probable cause, DPH must give the individual a copy of the hearing notice which has information on the opportunity to present oral or written statements under the Uniform Administrative Procedure Act. DPH must notify the complainant of its final disposition of the complaint within seven days of the disposition.

Under the act, records disclosed to a person filing a complaint that are otherwise confidential are not considered public records merely because they have been disclosed by DPH under these provisions.

MANDATORY MEDIATION

The act requires mandatory mediation for all civil actions seeking damages for personal injury or wrongful death, whether in tort or contract, where it is alleged that the harm resulted from a health care provider's negligence. Each action for which a valid certificate of good faith has been filed (as required by law for a negligence action against a provider) must be referred to mandatory mediation, unless the action is referred to another alternative dispute resolution program that the parties agree to. Mandatory mediation is for the purpose of reaching a prompt settlement or resolution of the action. “Health care providers” includes individuals as well as health care institutions.

Before the close of pleadings in the civil action, the judicial district's civil session presiding judge must refer the action to mandatory mediation or the other alternative dispute resolution. The referral cannot exceed 120 days unless, for good cause, the court extends it. The court must stay the time periods under which further pleadings, motions, and other procedures must be filed or take place except for adding defendants to apportion liability.

The act requires the mediation to start as soon as practicable but within 20 business days after the referral. The first mediation session must be conducted by the presiding judge or, at his or her discretion, a different superior court judge, senior judge, or judge trial referee. At the first session, the judge or referee must determine if the action can be resolved at that session, or if it cannot, whether the parties will agree to participate in further mediation. The mediation ends if the action is not resolved at the first session and the parties do not agree to further mediation. If they agree to further mediation, the presiding judge only must refer it for mediation before an attorney with experience related to such actions and who has been a Connecticut bar member for at least five years. Mediation must then begin as soon as practicable but not later than 20 business days after the referral. The plaintiffs must pay 50% of the mediation costs, with the other 50% apportioned among all defendants who are parties to the mediation.

Each party and a representative of each insurer that may be liable to pay a claim for an action must appear in person at each mediation session. The judge, referee, or mediator can allow participation by electronic means or telephone.

If mediation does not settle or conclude the action, the mediator and the parties, if they agree, may stipulate to any matter or conclusion that they believe may help or be relevant to narrow the issues, expedite discovery, or assist the parties in preparing the action for trial. All parties in attendance must agree to this. The act authorizes superior court judges to adopt necessary rules to conduct the mediation.

OLR Tracking: JK: RC: JL: DF