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DISCOVERY OF SENTINEL EVENT AND ROOT CAUSE ANALYSIS DOCUMENTS IN ERB’S PALSY AND MALPRACTICE LITIGATION by Mark R. Bower and Nursine S. Jackson, MSN, RN Almost every hospital in the state, and in the country, is accredited by the Joint Commission on Accreditation of Health Care Organizations (JCAHO). JCAHO is a national organization that sets standards, generally based on federal regulations, and then issues accreditation to a health organization that “substantially complies and continually make efforts to improve the care and services it provides1.” A hospital must have accreditation by JCAHO, in order to be paid by Medicaid, Medicare, and most major health insurance organizations. In order to maintain accredited status, a hospital is required to comply with a host of published standards that JCAHO enforces. In 1996, JCAHO promulgated its Sentinel Event Policy and Procedures. They state, in relevant part: I. Sentinel Events A ‘sentinel event’ is an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. Serious injury specifically includes loss of limb or function.... Such events are called “sentinel” because they signal the need for immediate investigation and response. Our practice concentrates on birth trauma litigation. There, we see a lot of Erb’s Palsy cases.1 The loss of the use of an affected arm due to a shoulder dystocia, and an Erb’s Palsy that 1 How a baby gets Erb’s Palsy: Plaintiffs typically contend that Erb’s Palsy (a/k/a brachial plexus palsy) is a birth injury, that happens when the nerves in the baby’s neck and upper shoulder are injured during delivery. As a result, the newborn has a partial loss of use and function of the arm. These babies get stuck in his mother’s birth canal. Typically, they are large (“macrosomic”). The bigger the baby, the greater the chance of the getting stuck in the birth canal (shoulder dystocia). This injury happens because the shoulder gets impacted (trapped) beneath the mother’s public bone. This is called “shoulder dystocia.” If a delivering doctor or midwife uses excessive force (“traction”) on the baby’s head and neck, in an effort to dislodge the baby, stretched the nerves emanating from the neck and down the shoulder (the “brachial plexus”), resulting in nerve injury causing a partial paralysis of the arm on the affected side. is diagnosed while the newborn is still in the nursery (the usual case), clearly falls within the definition of a “sentinel event.” While this article emanates from our prosecution of birth trauma cases, the general principles herein apply to any kind of malpractice case. In its Sentinel Event Alerts, Issue #30 (July 21, 2004), JCAHO specifically noted that “cases considered reviewable under the Sentinel Events Policy are ‘any perinatal death or major permanent loss of function unrelated to a congenital condition in an infant having a birth weight greater than 2500 gram.” Most babies with shoulder dystocia and Erb’s Palsy are large (3500 grams or more), and the Erb’s Palsy is usually diagnosed in the newborn nursery. Therefore, it is beyond question that the hospital and doctors know of the baby’s injury contemporaneously with his birth. That, by definition, constitutes a “sentinel event” that triggered mandatory reporting requirements. As part of the Sentinel Event Policy, the JCAHO requires all health care organizations to perform a “root cause analysis” whenever a “sentinel event” occurs, and to use the information from the data analysis to identify changes that will improve performance or reduce the risk of future “sentinel events.” To maintain JCAHO accreditation, healthcare organizations must also ensure that the processes for investigating and making an action plan to reduce the risk of similar events are defined and implemented. The Joint Commission for Accreditation of Healthcare Organizations (JCAHO) issued criteria for reporting an occurrence as a sentinel event. Failure to comply with the reporting requirement will place the facility on accreditation-watch status: “If a recipient of care is affected by one or more of the items listed below, then the incident must be reported to the JCAHO: (1) an event resulting in an unanticipated death or major permanent loss of function, not related to the natural course of the patient's illness or underlying condition . More information is available on the authors’ website, www.ErbsPalsyOnline.com. If the hospital is not in compliance with JCAHO, which includes filing required Sentinel Event Reports with JCAHO, it could lose its JCAHO-accreditation, which would effectively put the hospital out of business. In NY, one may expect that when the plaintiff tries to get the required Sentinel Event and Root Cause Analysis documents, defense counsel

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