Everyone on the cardiac surgery team at at my hospital has a deep seated, earnest stake in patient safety. We often meet to reflect on our cases and review details of how things went. Sometimes, the discussion turns emotional, particularly if someone’s performance was not optimal and/or the patient did poorly. Emotional memories are not inherently bad. In fact, one of the most powerful means to promote adult learning is to connect those memories to important concepts that help us all improve. Team debriefing sessions help us make sense of those emotions and our jobs, which reduces stress and improves morale. By including everyone—surgeon, anesthesiologist, nurses, technicians, perfusionists—we tap into the collective wisdom of many different perspectives, creating an accurate picture of reality and leading to more effective corrective action plans. By making debriefs a routine habit, our team deals with conflict early: at the acorn stage, stopping its progression into a full grown tree with deep roots. Debriefs help drive change to a true “safety culture”. Stories of how these meetings have made us more resilient tend to spread. That inspires those well beyond our cardiac surgery team.
Even if emotions and conflict are useful for driving impactful conversations, they are a double-edged sword. Our debrief sessions do not suppress controversial topics that other teams leave unaddressed, like the poor performance of someone on our team, inadequate communication/collaboration between different specialists and the many other factors that routinely trigger preventable harm. Admitting to a blameworthy problem in front of the whole team makes it real. Eliminating ambiguity contributes to patient safety, yet it is potentially problematic from a political perspective. Public confessions of an error can make a lead surgeon seem to lack confidence or credibility. Moreover, holding teammates accountable can backfire into allegations of blaming or creating a hostile work environment. Either outcome can alienate allies and enable adversaries to spread gossip through the grapevine, potentially harming the reputations of the surgeon, team and/or hospital.
These disadvantages of debriefs distress lawyers. From a legal perspective, debriefing a bad outcome creates a forum where conflict, fingerpointing and infighting among those involved could erupt. That is a recipe for a successful lawsuit. Finding evidence of an open display of animosity among team members lightens the burden of a plaintiff and heightens the potential verdict. Federal Rules of Civil Procedure entitle all plaintiffs to legal discovery of any nonprivileged matter relevant to their claim (Fed. R. Civ. P. 26(b)(1)). Admissions/allegations about errors that clinicians made while treating the plaintiff or remedial action taken afterwards is clearly relevant and within the scope of Rule 26. Thus, everything discussed at a debrief is discoverable and admissible as evidence unless courts deem this information to be “privileged”, which is a legal designation granting the right to resist disclosure. Two federal laws, healthcare quality improvement act (HCQIA) and patient safety and quality improvement act (PSQIA), establish a federal statutory privilege for quality assurance information of the type we routinely generate during a debrief. However, the privilege derived from HCQIA is exclusive to information related to physicians (not other hospital staff) and PSQIA is limited to information that is submitted to a separate entity known as a patient safety organization (PSO). Debriefs at our hospital are always multidisciplinary (not just involving physicians) and its conclusions are not presented to a PSO. Thus, neither of these laws is applicable to our cardiac surgery debriefs.
Even without a relevant federal statute, courts can step in to protect sensitive information through a common law privilege based on precedent. This type of privilege is granted by a judge on behalf of society, which has an interest in providing those who make decisions affecting public safety (e.g. surgical teams) with unfettered access to advice about mistakes they made so they can implement appropriate corrections. Willingness to offer such advice mandates certain ground rules. Discussions must be kept confidential, involve honest self-examination and must lead to effective remedial action. Court decisions have acknowledged that disclosing these sensitive discussions to a plaintiff puts debrief participants in a dilemma. Staff were promised that they could speak up honestly, admit their mistakes and agree to abide by a remediation plan since everything would be kept confidential. If they knew a plaintiff attorney would end up using these acts as evidence against them, many would not have participated as open and honest as they needed to for optimal patient safety. Obviously, access to debrief participants’ detailed analyses and deliberations about poor performance could greatly help a plaintiff’s lawyer build and prove a case. Plaintiffs have a right to discovery; however, they should not be assisted by novel efforts such as debriefs, which are designed specifically for other purposes. The legal reasoning to resolve this dilemma, by keeping discussions privileged, is derived from the time tested legal doctrines of confidence, of self-examination and the remedial action privilege.
Any privilege, however, entails a tradeoff. Protecting debriefs from disclosure would enhance our deliberations and, ultimately, the quality and safety of surgery. Yet it also could harm a plaintiff’s pursuit of justice. So granting this privilege requires passing a three step judicial test: 1) everyone attending the debrief makes an explicit agreement to hold discussions in confidence; 2) confidentiality is critical to promote effective communications; and 3) the benefit to surgical quality and safety is greater than the harm it causes to litigation. We can all agree that the first two steps are easily met by a debrief. Everyone on the team understands their explicit agreement for confidentiality, that our conversations are critical for improving patient safety, and do not develop from our ordinary course of business. The third step is more subjective and can only be confirmed on a case-by-case basis
Recently, the scales for the third step seem to be tipping in favor of patient safety over the rights of malpractice plaintiffs. Many courts have examined the legislative history of the PSQIA and construed it as a “shift in congressional policy” aimed at providing broad protection for the deliberations of self-critical analyses at hospitals. The point of protection is to incentivize clinicians to participate in voluntary patient safety activities without fear. The state of Kentucky, in particular, empowers its health care providers to have privileged and confidential investigations and discussions of health care events, like what occurs during our debriefs. In 2018, the Kentucky legislature deliberately revised its peer review statutes (KRS 311.377). Soon after, the Kentucky Supreme Court ruled that this revision showed an intent to offer even broader protections in this state than provided by federal law (PSQIA). Based on this interpretation, they granted privilege to a hospital defendant to withhold a root cause analysis of an adverse event from a discovery request. Of note, our debriefs follow a very similar model of investigation as a root cause analysis. More importantly, the specific information in the analysis described problems with nursing care (not physicians) and was not eventually reported to a PSO. The court’s decision noted that this Kentucky statute has no express requirement of submission to another body or to limit the granting of privilege to investigations involving only physicians. Based on this precedent, our self-critical debriefing evaluations (analysis, opinions, and conclusions but not the facts of the event) are almost certain to be deemed privileged.
Given the above, our argument that debrief discussions are a form of privileged communication appears to be strong. However, the final decision is always uncertain, subject to the hunches and cognitive biases of a given judge. Since we cannot know for sure if our discussions will actually be protected, some risk-averse legal experts have been tempted to limit our exposure by micromanaging our debrief meetings. For example, we can discuss upcoming cases, but not past ones; we can offer nonspecific teaching insights, but not give critical feedback to anyone about their specific performance. At face value, this seems like sound legal advice. However, it belies several unspoken (and likely false) assumptions that are worth examining.
The first assumption is that it is possible to control what the surgical team thinks, and says, regarding our cases. It’s not possible to control the thoughts or words of others. Even worse, this way of working backfires: when we try to limit open communication in a debrief, indirect communication springs up as a new norm. If we block communication and transparency, the natural reaction is for people to start spreading rumors. Thus, the grapevine becomes the team’s information channel to understand what’s really going on. This generates a vicious cycle of misinformation where the continued failure to raise and resolve the real issues leads to the team’s pent-up frustration and resentments. Ironically, the desire to avoid hurt creates the conditions in which hurt flourishes.
The second assumption is that control over a debrief provides a meaningful legal advantage. Any benefit is only an illusion when the deliberations we would have had openly at a debrief are pushed underground. As a general rule, disclosure of a protected communication to a third party destroys any attendant privilege from disclosure. So statements made outside of debrief—at the scrub sink, cafeteria or hallway—are never granted legal privilege. Even worse, these versions of the story are not informed by collective wisdom and based on only half-truths. Discovery of ex parte discussions is likely to be far more damaging to any legal defense. That makes the cure is worse than the disease.
The third assumption is that an effective debrief might increase legal risk. There isn’t any substance to this idea; any perceived reductions in legal risk due to eliminating debriefs are not real. Through years of experience, wise hospital lawyers learn that reducing legal risk at the expense of real patient safety is a terrible exchange. Interference with the work of clinicians striving to deliver safer patient care never reduces legal risk. On the contrary, it makes it worse. The whole idea is to limit “exposure during discovery”, which means to hide access of damaging information like animosity and fingerpointing between colleagues from plaintiffs. This idea is based on the false premise that the best way to win a legal batter is to conceal in preliminary stages and surprise and confuse during a trial. This employs a “smoke and mirrors” approach that yield facts that are distorted and one-sided, leaving it up to the judge to ferret out the truth. Such a strategy may be normal for a courtroom, but it is the opposite of how we organize our debriefs. The irreconcilable differences between legal and safety strategies make it imprudent to even ask a lawyer about our debriefs, much less to uncritically adopt their advice on how to run them.
The final assumption is that if a privilege cannot be guaranteed, then it should not be pursued. It is a legal gamble to keep debriefs unfettered in hopes that a court would protect our deliberations from discovery. Reaching such a decision is like a legal ‘homerun.’ Privileged communications can be protected from disclosure—not just to plaintiffs, but also regulators (CMS, state DOH and others)—when their disclosure proves harmful to the hospital. Yet, when the information is useful to our hospital’s defense, these communications can be removed from the protection of privilege, at our discretion, to support our case. That’s an enviable place to be. When the payoff is big, it is occasionally sound legal strategy to ‘swing for a homerun’ instead of a base hit.
On the other hand, it is reasonable to be sensitive to any legal risks that might arise from a debrief. Conflict needs to be effectively managed so to minimize acrimony and gossip. Kentucky statutes (216B.165) describe a duty of anyone working in a hospital to report quality of care and safety problems and prohibit retaliation for such reporting. Hospitals are notoriously difficult environments to speak up about errors and other patient harm. Our team has to foster psychological safety so those present at the debriefs feel comfortable using this forum to meet their obligations. Our hospital cannot afford to lose a route for speaking up that has so far been more effective than other alternatives.
To conclude, a debrief happens anytime we obtain information from participants in an important event with the goal of making sense and learning from the event. Historically, it has been applied mainly in the fields of aviation, miliary actions and surgery and confirmed to build trust among teammates. Distinguished author and theorist, Ernest Hemingway, said, “The best way to find out if you can trust somebody is to trust them.” The alternative—mistrust—breeds suspicion, insecurity, and discord in relationships that have critical implications for patient safety. By not trusting the OR team to carry on with traditional debriefs, we deny our staff the opportunity to build solid relationships based on mutual understanding, respect, and support. Debriefings cannot be done well when facing the scrutiny of those harboring a skeptical mindset, constantly questioning the motives and actions other participants. A review of the legal literature suggests debrief discussions are likely to be privileged. Thus, our cardiac surgery team, driven by a genuine interest in patient safety, deserves to be trusted to get back to action.
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