With the trend of increasing hospital bankruptcies unabated, the use of the Patient Care Ombudsman is becoming a more familiar occurrence.  A creature of the Bankruptcy Code, PCOs are appointed by the Bankruptcy Court when the debtor is a health care business.

The PCO’s responsibilities include monitoring the quality of patient care and representing the interests of the patients.   The underlying purpose of the appointment is to ensure that patients are not neglected during the bankruptcy process.

Within 60 days of the appointment, the PCO must file its initial report to the Bankruptcy Court regarding the quality of patient care provided to patients of the debtor.  Along with all other documents submitted to Bankruptcy Court, the PCO’s report is made publicly available.  Indeed, it is readily accessible via the internet without restriction.

The PCO, however, may find itself in a quandary in carrying out its responsibilities.   Typically the hospital’s records that the PCO should examine will reveal quality of care issues (i.e., mistakes, lapses, bad outcomes and flawed process).  But, what exactly are quality of care issues?  We can perhaps agree that frequent medication errors should be reported, but what about delayed transport from the Emergency Department to a medical floor?  Is the latter always a quality issue that requires the Court’s attention?  Should the PCO rely entirely upon the metrics utilized by the debtor, or should it develop its own?  Keeping in mind that the PCO report will probably be available online without restriction, should every single quality infraction unearthed by the PCO be included in the PCO report, or only those that could reasonably relate to current patient care?  One can easily imagine local news outlets seizing upon negative clinical information.  The specter of unrestrained, undisciplined disclosure of potentially damaging clinical information, easily available online, is indeed troubling, particularly because it can have no bearing on the overall quality of care.  (The best hospitals will uncover “quality” issues.  Indeed, the existence of a robust and effective quality improvement program is itself an indicator of high quality care.)

Moreover, quality improvement programs could be less effective if participants are reluctant to disclose quality of care issues because they fear the information could become public.  This brings to mind the purpose of the “self critical analysis” privilege. That privilege parallel’s already existing statutory confidentiality protections found in federal law governing physicians’ peer review activities under the Health Care Quality Improvement Act of 1986.  See 42 USC 11137(b).  Perhaps certain types of information should be excluded from the PCO Report and disclosed to the court in camera?

Heightened sensitivity, by both the Bankruptcy Court and the Patient Care Ombudsman, is therefore necessary to appropriately balance the openness required by the bankruptcy process, versus the privacy required by professional peer review activities and self critical analysis in health care settings.