Although some states have passed legislation granting peer review immunity for EMS, many have not; leaving the door open for discovery and closing the door on open, honest discussions that are at the heart of any successful quality assurance program.
Some EMS agencies have chosen to solve this problem by having open discussion without creating any documentation. However, in the absence of legislative immunity, providers can still be subpoenaed to testify as to whether a particular case was reviewed with a risk manager or medical director.
Documents protected by immunity laws may include medical director evaluations, documents mandating remediation training, root cause analysis of specific incidents, personnel performance evaluations of protocol compliance, minutes of quality improvement (Ql) meetings and other documents.
The purpose of peer-review immunity is to encourage honesty and candor in the process of attempting to understand why mistakes occur in medicine in order to improve the quality of care. EMS is coming into the mainstream of medical care by working toward legislation to protect its quality assurance activities, fostering open and honest discussions so that we, like other members of the healthcare team, can learn from our mistakes and determine how we can do better the next time.
After the Institute of Medicine stated in its 1999 report, “To Err is Human,” that 44,000-98,000 patients in U.S. hospitals died in 1997 as a result of medical errors, the problem came forward in a way that could no longer be swept under the carpet. Unfortunately, EMS has once again lagged behind other areas of medicine in passing important state legislation to provide immunity for its Ql activities.
Federal law supports the disclosure and analysis of error, as well as the sharing of data collected during peer review activities. The Health Care Quality Improvement Act of 1986, as well as the Patient Safety and Quality Improvement Act of 2005, set out the importance of a protected environment in which errors can be safely discussed, with an eye toward improvement of processes, systems, people and equipment that cause harm to patients.
The existing EMS peer-review immunity statutes differ from state to state, but have some important features in common. Peer review generally must be structured in a certain way to encompass only the members of a given organization actively engaged in the peer review process. It can’t include outsiders.” Some states provide specific protection for data collected during the process.
The National Association of EMTs (NAEMT) recently published a position statement on this topic, recommending that states that currently have peer review protection for EMS quality assurance should review and update those laws. NAEMT (www.naemt.org) recommends that states without protection make it a priority for their state EMS office to work toward such legislation.
The National Association of EMS Physicians (NAEMSP) is currently working on a position paper addressing the issue. A committee of physicians and EMS professionals are exploring options and reviewing the literature as well as immunity statutes from states that have them, in an attempt to come up with a unified approach to encourage legislation addressing this important feature of a medical system.
“Retrospectively reviewing our work in the field is crucial to ensuring ongoing delivery of high-quality EMS care. It is one of the only ways in which system inefficiencies and provider knowledge gaps are identified and addressed,” says.lcnna White, MD, assistant professor in the department of emergency medicine at the University of New Mexico Hospital in Albuquerque, and member of the NAEMSP committee working on the position paper. “Advocating for the legal protection of this process demonstrates that patients deserve to be treated in EMS systems that can critically analyze their work and use lessons learned from the quality assurance process to improve the delivery of care.”
If your state doesn’t have peer review protection for EMS, it’s time to start lobbying for it. Stop allowing the fear of litigation to dampen a high-quality look at how we can continue to work to make patient safety our highest priority.