Root cause analysis can ward off accidents

I have written for many years on accidents that have occurred in our industry in an effort to help us learn from the mistakes of others. Often, these stories touch close to home, and we imagine these accidents could happen to us.

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I have often advised that risk management is a difficult thing to undertake. Because there is no actual accident that heightens our sense of fear, we often lose our desire to be proactive. It is only when we find ourselves responding to a serious incident within our own company that we wake up and take the necessary steps. This column discusses a common approach to learning from incidents and implementing a long-term approach to prevent or greatly lessen the chance of recurrence.

When an incident occurs involving serious personal injury, death or property damage, the immediate response is to notify your insurer and lawyer and begin an investigation to determine what happened. That process looks at the facts and circumstances surrounding the incident. But you should also consider conducting a root cause investigation. A root cause investigation is undertaken with the goal of preventing a similar event in the future.

Root cause analysis looks at a variety of business concerns in an effort to improve the service provided to end users. It can identify process failures, declines in product quality or customer dissatisfaction and offers accident and incident analysis.

Unlike a traditional accident investigation, a root cause analysis looks at the “why” of an incident. It should occur after the accident investigation is complete. It uses the accident investigation data as a foundation but takes a more holistic approach to the entire enterprise to see trends. An accident investigation documents and preserves relevant evidence, while root cause looks at why the failure occurred and develops plans and policies to prevent similar incidents.

Implementing root cause analysis is a good business practice. But doing so has certain perils in today’s litigious environment. If root cause analysis is treated as part of your normal course of business, it may not be protected from disclosure in a lawsuit. The goal is to protect such an investigation by cloaking it in what is known as the work-product doctrine. Even this doctrine will not protect disclosure of “facts” from witnesses.

In an effort to cloak the root cause analysis with protection via the work-product doctrine, you should develop company policies that define your investigation. A good reference point is Federal Rule of Evidence 407, dealing with remedial measures. Generally, remedial measures (i.e., changes made post-accident) aren’t admissible in evidence. The language defines root cause to deal with problems in general but not the specific event that caused a single accident.

Having in-house counsel assigned to the root cause analysis team is a good step. But she should not be part of both the incident investigation and the root cause analysis. This separation gives credence that the root cause analysis is separate from a singular incident. Use different titles for both investigations. Protect the singular incident with a label – “Created in Anticipation of Litigation” – and have a lawyer direct that investigation from its onset. Always be aware that efforts will be made to obtain these reports. So, consider limiting your contact with senior executives to verbal communications.

At the outset, be cognizant that a reviewing court will look at the company policies for incident investigations and root cause analysis. This is a fact-intensive exercise. It will consider the typical role of in-house counsel as set out in company policies and a real-world understanding of how it has dealt with other such events. It will not protect actual facts learned, as those are not considered subject to a privilege.

If you have never done a root cause analysis and want to consider doing so in the future, I recommend consulting with your corporate counsel to be sure policies and procedures are created to protect that work from discovery in litigation.

John V. McCoy is with McCoy, Leavitt, Laskey LLC. His firm represents industry members nationally.