A quarterly review of Company and industry news for Medical Mutual member-policyholders.
About Us » Publications & Announcements
The Advocate
Archive
Disclosure – A Defense Attorney’s Perspective
By Michael Lehman
Immediate disclosure without time for reflection and investigation, without input from Risk Management, and by scared, remorseful providers who are not trained in the appropriate methods and contexts of disclosure is a recipe for disaster.
Over the course of the last 10 years, there has been a strong movement
in health care circles advocating more and earlier disclosure of
medical errors or, as often denominated in well-written policies,
"unanticipated patient outcomes." (Although there are probably as
many different definitions as there are articles and policies, for the
purposes of this column, the term "Disclosure" refers to preventable
medical errors and not bad outcomes which are accepted risks of the
illness, procedure, or treatment.)While disclosure of unanticipated
outcomes is often a health care provider’s ethical duty, and is under
many circumstances required by both the AMA and The Joint
Commission, there is insufficient evidence to conclude that disclosure
is useful as a risk management tool or that it will decrease malpractice
liability and associated costs. Led by publication of the
experience of institutions such as the V.A. Medical Center in
Lexington, Kentucky, and the University of Michigan, and touted
by groups such as the "Sorry Works! Coalition," disclosure has been
seen by some to be a panacea for all of our medical error and malpractice
litigation ills. However, cautionary notes have been sounded
by many observers. For example, one widely-quoted empirical
modeling study concluded that "Forecasts of reduced litigation volume
or cost do not withstand close scrutiny." To the contrary, the
study found that, "An increase in litigation volume and costs was
highly likely." ("Disclosure of Medical Injury to Patients: An
Improper Risk Management Strategy," Studdert, et al, Health Affairs,
Vol. 26, No.1, January 2007). I can attest to this conclusion anecdotally
with several of my own cases over the last few years which might
well not have become claims except for the disclosures that occurred.
I recite the above not to discourage disclosure when ethically
appropriate, but to inject a dose of reality from one busy malpractice
defense firm into the discussion. Below I will offer a few
observations based on our own experience and that of clients we
have represented.
Although disclosure may be appropriate and required in many
different situations, improperly conceived and executed disclosure
can have the opposite of the intended effect. Disclosure which is
made prematurely, by the wrong people, or in the wrong manner,
can add unnecessarily to a patient’s panic and distress and cause
serious harm to providers who may in fact not be responsible for
inappropriate care, while at the same time increasing distrust and
hence the risk of litigation and thus prove unnecessarily financially
costly to the institution. The risk of disclosure being made by the
wrong person without appropriate planning and guidance is illustrated
by the case of one excellent young physician who I recently
represented who had made a serious intra-operative error. When
he outlined to me what he wanted to say to the patient, it was
obviously "all about me," and not about the patient or the
patient’s problems. The physician was going to tell the patient
about how remorseful he was, how much sleep he was losing over
the event, and the potential consequences to him, without too
much thought about how the patient might perceive such a soliloquy.
The physician was so horrified by the fact that he could have
caused serious harm despite his self-image as an extremely welltrained
and careful practitioner, that he allowed these feelings to overwhelm what should have been the primary goals of caring for
the patient’s needs and empathizing with her problems.
The dangers of premature disclosure are illustrated by a case I
was involved in several years ago in which a nurse flushed the IV
line with saline after administering IV antibiotics. Shortly thereafter
the patient suffered a cardiopulmonary arrest and died. One of the
patient’s physicians immediately, and without consulting anyone,
conducted his personal investigation and concluded that the nurse
had erroneously injected potassium chloride and not normal saline
into the IV. He told the patient’s spouse and wrote a progress note
blaming the nurse. Subsequently, a detailed investigation by
Quality Assurance and Risk Management concluded that potassium
chloride had not been injected into the IV, and that the cardiac
arrest was from a completely different cause. Nevertheless, the
damage had been done, and a lawsuit was filed within weeks of the
patient’s death which was settled for a considerable sum.
In my experience, this scenario of a premature reaction to an
unexpected event, conducted in the heat of the moment when
everyone is shocked, scared, and remorseful about a terrible
patient outcome and reacts instinctively, encouraged by everything
they have read and heard about the necessity for disclosure,
is all too common and can cause serious unnecessary problems.
Immediate disclosure without time for reflection and investigation,
without input from Risk Management, and by scared,
remorseful providers who are not trained in the appropriate
methods and contexts of disclosure is a recipe for disaster.
There are many guidelines available for when disclosure is appropriate and how it should be conducted, and I will not repeat all of them here. However, I will briefly outline those steps in the process which from my perspective are the most important and require emphasis:
- In the event of an unanticipated outcome, the provider’s first obligation is obviously to the well-being of the patient. Recognizing and admitting that there is a problem and doing everything to meet the patient’s needs as soon as possible must be the first priority.
- In any case with the possibility of actual or potential significant patient harm, appropriate individuals in the institution must be consulted before any disclosure is made. In many hospitals, this will include Risk Management personnel who are experienced in dealing with such situations and who can provide guidance on preserving evidence, determining the true cause of the event, deciding on how and when to communicate the problem to the patient, and who can initiate appropriate internal remedial actions such as Sentinel Event, and quality assurance reviews.
- Documentation in the chart must be complete, accurate, and factual, without the interjection of judgments and fingerpointing. Often these initial judgments will turn out to be wrong, finger-pointing will be unjustified, and providers wrongly singled out may suffer serious impacts on both their mental state and their careers.
- Keep the patient informed of the facts relative to the incident and, if appropriate, indicate that an investigation is underway and that more information will be provided once the event is better understood. Avoid communicating premature judgments to the patient.
- If after thorough investigation it appears that disclosure is appropriate, plan the disclosure so that it is done at the right time, by the right people, and with the right words, using guidelines such as those outlined below. If there is a significant difference of opinion as to whether it is appropriate to disclose a particular problem to a patient, it may be necessary to involve other parties, such as the hospital’s ethics committee.
- Identify a point person to manage communication with the patient so that the patient is receiving a coherent useful message and is not being confused by hearing different stories from different people.
We have assisted many providers in preparing for a difficult discussion with the patient or patient’s family about a medical error. While every situation is different, I have come to believe that there are several factors which must be considered in every disclosure situation:
- Is the timing correct? Has appropriate investigation been done and has there been time to come to a reasoned conclusion?
- Is the disclosure to be made by the right people? Generally, the disclosure should be made by the senior physician involved in the patient’s care and never without at least one other person present. However, some physicians are good communicators and some are awful. It is imperative that the person who takes the lead at any such discussion be a good communicator who is both knowledgeable and empathetic. Whether other individuals present include clinical staff, administrators, or even risk managers, will depend on the specific situation, but in every case care should be taken to select the people appropriate for the particular patient and situation.
- How should the actual conversation be conducted? It is fairly
universally agreed, and simple common sense, that such conversations
should include at least the following:
- Compassionate communication of the facts and, if appropriate, why the event occurred, without inserting personal judgments or assigning blame;
- Expression of regret that the unanticipated outcome occurred;
- Recommendations for further medical care and discussion of likely outcome, if known;
- If appropriate, a description of steps which are to be taken to prevent similar occurrences;
- Let the patient or family know that additional information will be provided as it becomes known, with identification of a single point-person to be the focus of communications and the recipient of further questions from the patient or family.
- Objectively document the conversation in the patient’s medical record.
- If appropriate to the situation, or if the patient inquires, identification of the person who should be contacted if the patient or family expresses an interest in compensation.
Although not directly within the scope of this article, I should
briefly note before closing the significant issues surrounding the
legal effect of apologies and disclosures. This topic was addressed
at some length in an article in The Beacon in March, 2006, discussing "I’m
sorry" legislation that had been passed at that point in Maine and
New Hampshire. Since then, similar legislation has been passed
in Vermont. None of these statutes provide protection to
providers who admit to fault in discussions with patients, and
thus they do not provide any guarantee that a disclosure discussion
with a patient will not be allowed into evidence in a subsequent
medical malpractice trial. Among the many items of
mis-information floating around the medical community is the
belief by many providers that these statutes now provide them
with complete protection for any post-unexpected outcome
patient discussion involving apologies and admissions of fault.
This is definitely not the case, and it is incumbent upon risk
managers to become familiar with the applicable "apology"
statute in states for which they are responsible and to advise
providers about appropriate language to use to fulfill their ethical
obligations to patients without unnecessarily increasing their
exposure in a possible medical negligence case.
Physicians, nurses, and allied health providers are being bombarded
with information about the disclosure and "I’m sorry"
movement from multiple sources: professional associations, meetings,
colleagues, and the media. While I believe it is too early to
judge the impact of this movement on malpractice costs, it is
readily apparent that poorly timed and planned disclosure can
cause significant harm to both patients and providers. Therefore,
it is incumbent upon providers, institutions, and risk managers to
educate themselves about the debate, to develop clear guidelines
and policies, and to take affirmative steps to make sure that all
providers are aware of and follow them.
Michael Lehman is a health care and medical malpractice defense
attorney with Sulloway & Hollis in Concord, New Hampshire. Mr.
Lehman and his firm have been defending Medical Mutual insureds
since the company began writing policies in New Hampshire.