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Texas hospitals wary of making complaints, errors public

Across Texas over a recent three-year period, hospitals reported that 53 newborns with no obvious birth defects died unexpectedly. Medical blunders killed or crippled another 78 patients.

Foreign objects — sponges, needles, tools — were accidentally left in 218 patients. More than 120 times, surgeons cut into the wrong body part or wrong patient.

Which hospitals bungled their jobs? The state knows, but, by law, you can't find out. In fact, from now on you won't even be able to see such statistics. Since September, the state no longer requires hospitals to own up to their mistakes, even anonymously. The Legislature let the law expire.

Hospitals have been able to avoid making more than their errors public. Complaints, accreditation inspections, staffing numbers, infection rates — information that could help the public evaluate patient care — are also off limits.

Hospitals largely operate under a blanket of secrecy, shielded by state laws and other protections. And Texas may be among the states that requires the least disclosure, even as a push is on elsewhere to open up quality information.

The public is "in the dark about the quality and safety of the hospital," said Lisa McGiffert, a senior policy analyst on health issues for Consumers Union, publisher of Consumer Reports. "There's so much information about the hospitals that is held by the state and national accrediting agencies that we just can never see."

Hospital advocates say that more information is being made public, but that a balance must be struck between the increasing demand for openness and the potential shaming of healthcare providers. Anonymous reporting, they say, encourages hospitals to address problems rather than hide them.

Public reporting sometimes "has a chilling effect," said Charles Bailey, general counsel for the Texas Hospital Association. So while hospitals are starting to open up, he said, "there's some reluctance because they're worried about getting sued or other implications."

Critics, though, say that hospital transparency is vital. Patients put their lives in the hands of hospitals. And hospitals depends on billions of taxpayer dollars.

"We have a right to access information that is held by our government about these hospitals," McGiffert said.

In the midst of the debate, JPS Health Network could be a test case for how far Texas hospitals may be willing to go. Leaders of Tarrant County's taxpayer-supported hospital district have recently signaled they intend to operate in a glass house.

The promise comes after a particularly information-stingy period. This spring, administrators shut off some information to employees, briefly cut off the Star-Telegram's access to decision-makers and kept a scathing report about JPS from board members.

So how far is JPS willing to go? Will it open up accreditation reports? Post infection rates on its Web site? Publicize complaints?

Interim Chief Executive Robert Earley says taxpayers deserve to know how money is spent and the hospital is run. But he isn't ready to say what's on the table.

When it comes to inspections and medical mistakes, first he needs to consult with lawyers and staff. And opening up too much about complaints, he said, could create "immense fear for things that aren't based on a level of fact."

"But I will look at opening up JPS in a far more transparent way," he said.

JPS board Chairman Steve Montgomery has said he wants transparency, no matter the risk.

"Philosophically, I want to be as open as possible," he said in a recent interview. "I always want to come down on the side of the consumer. But I also think there is some validity to the argument that the information can be incredibly complicated."

A family seeks answers

Hazel McManus slipped getting out of her bathtub, landing painfully on her tailbone.

The 90-year-old great-grandmother was eventually admitted to HealthSouth Dallas Rehabilitation Hospital with a bruise.

Yet her doctor discharged her to another facility with a long list of prescriptions — for gout, congestive heart failure, heart arrhythmia and an eye problem, court records show. Trouble is, the family says McManus suffered from none of those.

Fourteen days after leaving HealthSouth, she died of complications from kidney failure that the family says resulted from her being given the wrong prescriptions.

On Jan. 26, 2006, McManus' stepson, Charles, complained to the Texas Department of State Health Services.

Less than two weeks later, the family received a two-paragraph response that the complaint had been "substantiated." Yet the hospital wasn't cited for any deficiencies, the letter said, because the "facility had taken corrective action prior to the investigation."

The extent of the investigation, who was interviewed, what records were consulted, the corrective active taken — all of it is secret under state law. HealthSouth officials declined to comment because the matter is in litigation.

"I felt like anyone could have gone in there and the hospital gave them a snow job, and they say that's fine and turned around and walked out," Charles McManus said.

Complaint information compiled by the state can give a snapshot of hospital quality. The state investigates concerns such as filth and botched surgeries.

Until recent years, the public at least could learn the nature of such complaints. But a bill passed in 1999 locked away almost all the information.

"What the result has been ... is that if I have a complaint about something that occurs in the hospital, I can't get the status of my own complaint," said Patricia Gray, a former state legislator.

Hospital association lobbyists pushed the proposal that sealed the information, Gray said. But she said it was her "screwup" to accept the proposal into her bill, not realizing what it did.

Complaint information is released only when the state notifies a hospital of a potential violation of law.

Bailey, of the hospital association, acknowledged that the public is given "very minimal" information. For complaints substantiated by the state, he said, "having information concerning what type of complaint or the nature of the complaint does make sense."

Federal law imposes similar restrictions on complaints by Medicare patients. TMF Health Quality Institute investigates such complaints in Texas, but it cannot release findings unless the hospital or physician give permission.

They share information "almost 100 percent of the time if they're not at fault," said Janet Kilcrease, TMF director of review and compliance.

But when hospitals are at fault and don't give permission, the patient is simply told that care did not meet standards, she said.

Earley, JPS' interim CEO, signaled that he was reluctant to make a blanket release of complaints. The state has received 236 complaints against JPS since 2001. Just two were made public.

Another 16, substantiated through investigations, are sealed. Earley said that when complaints are substantiated, information about what was corrected — but not the complaints themselves — should be made public.

"There is a need to let people know about their public hospital ... [but] every complaint needs to be ferreted out and needs to be vetted," he said.

How much to disclose?

Pressure from federal agencies has opened up hospital quality statistics in recent years. Hospitals that don't provide the information can see a small reduction in their Medicare funding.

At www.hospitalcompare.hhs.gov, the public can see federal hospital report cards on selected quality measures, such as care for pneumonia patients.

The state has also made information such as mortality rates available, despite hospitals' hesitancy. The rest of what the state shares is a short list, including licensing information and applications and federal deficiencies found during inspections.

But much of the available information across the nation is either outdated or flawed, said Jaz King, spokesman for IPRO, a nonprofit consulting firm that promotes healthcare transparency.

"We don't even know half the data out there that we are not getting," King said. "It is such an opaque industry."

And there is still much left that hospitals could divulge, such as rates for hospital-acquired infections and staffing levels.

The problem, industry leaders say, is how to present the information fairly and objectively.

Dr. Paul Convery, chief medical officer for Baylor Health Care System, said hospitals simply want a level playing field.

"We support the efforts of ... the federal government in standardizing the reporting processes because that gives the public a way to compare one hospital to another," he said.

This year, Baylor won an award from the National Quality Forum in part because of its commitment to transparency. The system posts hospital staff sizes, among other details, on its Web site.

But Baylor isn't ready to post medical mistakes, Convery said, because of concerns that "you would discourage people talking about them and set safety back."

A possible shift by JPS

JPS may be ready to take the plunge into disclosure by releasing details about a key report usually kept under wraps. Earley said he "hopes" to release findings from a surprise inspection in June by The Joint Commission, which accredits hospitals.

If JPS discloses those findings, that would mark a departure from its previous stance. This spring, for example, JPS asked the attorney general's office to declare that it did not have to disclose documents related to verifying the hospital's trauma capability.

Much of what The Joint Commission knows about hospitals is secret, even though its seal of approval opens the door to Medicare and Medicaid funding.

The commission's Web site makes a quality report available that compares the hospital's performance in a number of areas with national standards. But critics argue that the data doesn't delve into details. McGiffert said similar information is available on the government's Web site.

The commission also does not readily share information about hospitals' unexpected deaths or injuries. It will only confirm that they occurred if someone knows to ask. And reporting of those so-called "sentinel events" is voluntary.

"We wanted to move from a culture of blame where people were driving these things underground to a culture of 'Everybody is human. To err is human,'" said spokeswoman Elizabeth Zhani.

The commission's contracts with the organizations it accredits bar it from releasing such information or the accreditation reports, Zhani said.

Montgomery, the JPS board chairman, would not commit to releasing any specific report. He said information needs to be presented in context so it isn't misinterpreted.

"Not to be condescending, but some of that stuff is painfully challenging to really understand because it is so complex," he said.

Staff writer Anthony Spangler contributed to this report.

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