Health Watch USA and Kentucky Watch, along with assistance from Kentuckians for Nursing Home Reform, hosted a Conference on Health Care Transparency and Patient Advocacy on November 16, 2007, in Lexington, Kentucky. The driving force behind the conference was Dr. Kevin Kavanaugh, whose energy is matched only by his good intentions, intellect and understanding of both health care economics and policy. The featured speaker was former United States Surgeon General Dr. Jocelyn Elders.
I was honored to speak briefly on two topics, the structure of health care regulation in Kentucky and the role and responsibility of the health care professional in promoting quality care for patients. Both represent compromises that are likely to undermine their aim. The former is a dual-track regulatory scheme that delegates to the Joint Commission on Accreditation of Healthcare Organizations (known simply as "the Joint Commission") what is the state's regulatory oversight: if a hospital receives Joint Commission accreditation, it is essentially relieved of oversight from or reporting to the state. While some argument can be made in favor of this out-sourcing of the state's public protection responsibilities to a private organization financed by the industry that it polices, one questions whether either the patient or the public is best or well-served where, for instance, the Joint Commission standards for nurse staffing are less rigorous than that prescribed by state regulation. The American Nurses Association has identified a similar deficiency in the lawsuit it has brought against the federal Department of Health and Human Services. Perhaps Kentucky will eliminate its loophole through legislation in the upcoming General Assembly session.
KRS 216B.165, which is sometimes referred to as Kentucky's "Patient Safety Act," is a compulsory whistle-blowing statute. Employees that become aware of some condition, event or circumstance posing jeopardy to quality patient care "shall" report that matter to someone at their facility empowered to ameliorate it and may report it to an outside agency. However and while retaliation against whistle-blowing employees is prohibited, Kentucky law offers very thin real and practical legal protection to employees that suffer reprisal. At present aggrieved employees may file a lawsuit and seek to recover their damages. They may seek punitive damages as well, although employees and individuals seeking or recovering punitive damages from health care and other corporations have found in recent years the courts resistant if not hostile to the notion that corporate accountability is served by the imposition of punitive damages. The public interest aimed to be served by this statute can further be served by enactment of an administrative remedy for aggrieved employees and by a fee-shifting provision for those that pursue their remedies in court.
