Monitoring and Eliminating “Never Events” in Court Administration

The Centers for Medicare and Medicaid Services recently made “never events” – so called because they should never happen – a prominent part of its performance measurement and management policy for U.S. hospitals. The concept of “never events” is yet another example of the nation-wide movement to reform health care by performance monitoring, analysis and management (see Pursuing Perfection – A Lesson from Health Care, Made2Measure, November 1, 2006).

Starting in October, Medicare will stop reimbursing hospitals for treating device related infections, urinary tract infections, and surgical infections after orthopedic and heart surgery. Why?

Because they are “never events” that should never or rarely ever happen. Because there is proof that nearly all of these hospital infections that sicken and kill millions of patients a year are avoidable when hospital nurses and doctors clean their hands, decontaminate medical devices and instruments, and take other relatively simple preventative measures. Because it is a decisive step toward encouraging better care and lower overall health care costs for patients and taxpayers. And because, according to Ed Levern (Modern Healthcare, vol.31, no. 32) way back in 2001, “never events” would provide a standard for states to use in refining or developing measurement systems for collecting adverse medical-event information. “Hospitals should be required to report certain medical errors to publicly accessible, state-run databases to create a level of accountability now lacking in the healthcare system,” Levern writes.

Preventable and Unacceptable
Until recently, hospitals and health care providers considered drug-resistant staph infections related to the use of certain devices like catheters and breathing tubes, urinary tract infections, and surgical infections after surgery unavoidable risk. Patients and taxpayers absorbed the costs of these risks.

Well, guess what? Most of these infections are preventable. All it takes is the will, proper hygiene and other relatively simple preventative measures. We have the knowledge and capacity. That’s why the Centers for Medicare and Medicaid Services call them “never events.”

According to the August 2008 issue of Nurse Week, more than 30 million urinary catheters are inserted into U.S. hospital patients each year, and an estimated 10 to 30 percent of them develop catheter-associated urinary tract infection (CAUTI) that are largely preventable using simple proven methods like timely removal of catheters. Central bloodline infections caused by contaminated tubes routinely inserted into hospital patients’ veins are preventable by rigorous hygiene practiced by doctors and nurses. Betsy McCaughey, the former lieutenant governor of New York State and chair of the Committee to Reduce Infection Deaths, reported in the August 14 edition of the Wall Street Journal (“Hospital Infections: Preventable and Unacceptable”) that New York City’s Beth Israel Medical Center has not had a central line blood infection in its cardiac intensive care unit in over 1,000 days.

What Works? Return on Investment (ROI)?
Let me try to make the connection to what we do in the courts.

Identifying the right performance measures for courts and making sure they are used effectively can be translated operationally into three requirements and three phases of development:

o Identifying and developing the right performance measures.
o Ensuring that the right measures can be delivered to the right people in the right way and at the right time.
o Integrating the measures with key management processes and operations including budgeting and finance, resource and workload allocation, strategic planning, organizational management, and staff development. Performance measurement has to be built in a positive way into the everyday workings of the organization.

We are past the tipping point of meeting the first requirement. Hundreds of courts in two thirds of the states – including trial, appellate and limited jurisdiction courts -- have made significant strides in identifying what they consider the right performance measures. In today’s accountability-driven court environment, performance measurement is no longer a novel idea. Enter “CourTools” into a Google search and you will get thousands of hits as compared to a few dozen in early 2005 when the CourTools measures were first introduced by the National Center for State Courts.

The problem is that the movement toward court performance measurement and management has slowed at the second and third requirements. In addition to the expected undesirable inertia that comes from aversion to any change, the movement is bottlenecked at questions of return-on-investment (ROI): OK, court leaders and managers are asking, now that we have the right measures, what precisely will performance monitoring, analysis and management do for us? What works? How do I leap from measurement to management? Show me the way.

I have until very recently dodged these RIO questions and argued successfully that courts should proceed in meeting the second and third requirements even though the ROI is unclear, even though what works is not yet evidence-based, and even though the leap from measurement to management is not yet mapped. I’ve said that we are developing the right hammer and the right saw -- the right tools -- but we have yet to decide what to build and what to fix with these tools. That will be up to you and, trust me, you’ll do OK making the ROI leap from measurement to management when the time comes.

Well, that argument has worked in the past when court leaders and managers were still intrigued with identifying the right measures, when they thought they might not be able to do it. But now that they know that they can identify the right measures, many are reluctant to invest in performance dashboards and business intelligence to get the measures into the right hands in the right way and, further, to hard-wire performance measurement into the very DNA of court management and operations until they get a clear bead on ROI.

A Model for Court Performance Excellence?
“Never events” may be what we need to map the leap from performance measurement to management and to articulate ROI clearly.

Effective performance measures are easy to understand and explain to others. By their very name and brief definition alone, they evoke one or more values or fundamental obligations of a court and they suggests a compelling and short-hand concept for articulating the ROI of performance measurement and management. (Side Note: I have tried, with only moderate success, to rename court performance measures, time to disposition, for example, using more descriptive labels such as on-time case processing.)

“Never events” connote accountability and urgency. The term suggests the kind of monitoring, analyzing and managing of unwanted variation in performance that are at the heart of effective court performance measurement (see Undesirable Variation in Court Performance, Made2Measure, April 23, 2007). It has the kind of striking attention-getting simplicity and evokes the level urgency that most court performance measurement concepts still lack.
Would court systems and individual courts – who may not otherwise yet be able to articulate ROI in performance measurement – be able to reach consensus among court leaders and managers, justice system partners, and other stakeholders about preventable adverse events that should never occur and to define them in a way that, should they occur, it would be clear what had to be monitored, analyzed and managed?

In 2002, the National Quality Forum (NQF), a not-for-profit created to develop and implement a national strategy for health care quality performance measurement, published a report, Serious Reportable Events in Healthcare, which identified 27 adverse events that are serious, largely preventable, and of concern to both the public and healthcare providers. The items on the list are events are:

· Of concern to both the public and healthcare professionals and providers.
· Clearly identifiable and measurable, and thus feasible to include in a performance measurement reporting system.
· Of a nature such that the risk of occurrence is significantly influenced by the policies and procedures of the organization.

Would we be able to do the same for court administration? What are “never events” in court administration that would meet these criteria? For example, cases that exceed a critical number of elapsed days from filing without disposition or resolution? Clearance rates for specific case types that fall below 95 percent? Ten percent or more “strongly disagree” responses to any item in a surveys of court users at the trial court level or a survey of the appellate bar and bench at the appellate court level, or a survey of court employees?

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