Physicians, Patients and Errors: Exercising the Right Amount of Disclosure

By Debra Wood, RN, contributor

May 31, 2013 - Patients and physicians think differently about what should happen when a medical error occurs, with patients wanting disclosure and an explanation and physicians hesitant to discuss their role in the error or its effect on patient health, according to a Patient Safety Primer from the Agency for Healthcare Research and Quality’s (AHRQ’s) Patient Safety Network.

Rodney Adams: keep patients and family close during medical error disclosure.
Rodney K. Adams recommends a “bear hug” defense, keeping the patient and family close when discussing medical errors and adverse events.

“The current push is for full disclosure and engaging the patient,” said Rodney K. Adams, an attorney with LeClairRyan in Richmond, Va. “It is often a good idea to be talking to the patient, and if there is an obvious error, that everybody be frank about that and move on.”

More and more people and organizations are supporting greater transparency. The Joint Commission requires providers to disclose to patients an “unanticipated outcome,” and the National Quality Forum (NQF) supports full disclosure as a safe practice. Full disclosure means informing the patient of the error, acknowledging responsibility and apologizing.

Some states even mandate disclosure and some have enacted laws in which a physician’s apology cannot be used against him or her in a medical liability case. However, Adams said most of the statutes allow admission of any verbiage that the physician made a mistake.

“It’s dicey for the doctor to have those conversations, and he or she should have someone else there,” Adams said.

The Patient Safety Primer reported that most physicians support full disclosure, but in practice they may only partially disclose, telling the patient about the adverse event but not the error.

“Physicians hate to fail, so these are hard conversations for physicians to have,” Adams said. 

Even so, it’s important to have those talks.

“For too long in our country and our legal system the thought has been patients and families just want a jackpot and want to sue,” said Doug Wojcieszak, founder of Sorry Works! in Glen Carbon, Ill. “Most people just want answers. They want information: what happened, what didn’t happen, how to prevent in the future.”

The clinicians suffer too, said Wojcieszak, adding, “They get chewed up emotionally. Both sides need disclosure.”

Physicians may fear disclosure will bring a lawsuit, but some studies have shown that will not always happen.

“What I hear often in medical malpractice cases is ‘Nobody talked to me,’ ‘Nobody told me what happened,’” Adams said. While that may be the case, he said the patient or family might not be ready to hear the news during a health crisis.

“Things may have been said that were not received,” Adams said. He recommends more than one person meet with the patient, so there is clarity about the conversation. He also encourages involving the family.

“The challenge is balancing having these wonderful sit-downs with patients with the pressure to produce,” Adams added. Sometimes, such a talk can take a couple of hours.

“I have what I call the ‘bear-hug’ defense: the closer you are to the patient, the less likely they are to take a swing at you,” Adams said.

Adams said physicians with a good bedside manner are less likely to be sued than experts in the operating room who seem to not care.

“It’s in the physician’s advantage to be in with the patient and family, talking with them and engaged with them,” Adams said. 

Additionally, clinicians often lack training about how to go about telling patients and how much to say.

Wojcieszak reported some medical schools are incorporating how to do full disclosure into the curriculum. And for established clinicians and hospitals, Sorry Works! offers educational programs, which includes scripting. Steps include: empathize; don’t jump to conclusions; be credible; inform about the investigation; and seek resolution if there was a mistake.

“It’s a lot of things other industries have done for a long time,” Wojcieszak said. “But it’s new to healthcare.”

Harvard Hospitals published a consensus statement, “When Things Go Wrong: Responding to Adverse Events,” which serves as a guide for clinicians. It recommends “prompt, compassionate and honest communication” following an incident.

Patients often need psychological and social support, and the Harvard team indicates they should receive it along with explanations and evidence of an investigation into what happened. Patients also may need financial support, but the report states “how to provide it is less clear.”

The University of Michigan Health System (UMHS) in Ann Arbor has found honesty is the best policy, with its Michigan Model. When someone realizes a mistake or near miss has occurred, the involved caregivers communicate openly and directly with the patient or his or her representative. A peer review of the incident or complaint takes place and will note opportunities for improvement. If the patient has retained a lawyer, hospital officials will meet with legal counsel, and, if an injury occurred, reach a mutual resolution. If that means a settlement, the hospital compensates quickly and fairly. 

The number of claims received by UMHS has declined, from more than 260 pre-suit claims in July 2001 to slightly more than 100 now. Legal costs have decreased by more than half since 1997, and it estimates savings of $2 million in the first year it adopted this model.

“It’s paid off for them, and it’s paying off for a lot of other organizations,” Wojcieszak said. “Michigan has been the most vocal as far as public relations and sharing the story.”

He explained that such policies eliminate the need for litigation. Yet hospitals often have not developed a formal plan.

“It takes time and resources, but if it stops one lawsuit, which this will do, it more than pays for itself,” Wojcieszak said. “They need to do this or they are hurting their docs and nurses as well as patients and families.”

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