Disclosing another doctor’s error creates dilemma: Stay silent or speak the truth?
It’s necessary to (carefully) disclose malpractice suspicions
It’s not uncommon for a physician to find evidence suggesting that a patient received poor care from a previous doctor, sometimes indicating gross malpractice.
But if the patient has no idea of the problem, what does the second physician do?
Does he or she tell the patient?
The answer is sometimes yes, according to risk management and ethics professionals who frequently encounter this dilemma. But the real question is how you disclose the information, they say. Risk managers must become directly involved in the process and ensure that only factual information is conveyed, and in the best manner possible.
John Banja, PhD, director of the Center for Ethics in Public Policy and the Professions at Emory University in Atlanta, says he sees this scenario played out often on the Emory campus. As a large, prestigious teaching facility, the Emory University health facilities treat a number of patients referred from throughout the Southeast because their cases are especially difficult. Sometimes the doctors discover that the patient’s problem is the care he or she received before coming to Emory.
"This is one of the most difficult situations that a provider can come across," he says. "Physicians have a difficult enough time disclosing our own errors, much less someone else’s."
Health care providers have focused on disclosure in recent years, with many risk managers urging clinicians to tell patients about medical errors and other information that might be difficult to convey. Banja is a strong advocate of full disclosure, but says the real-world demands of a medical practice can make it difficult for physicians to report each other’s shortcomings. For some, there is a great reluctance to rat on another doctor.
"Physicians realize that an awful lot of their reputation in the health care marketplace restson how other doctors regard them. A physician is horrified at the prospect of other physicians thinking he or she is incompetent," he says. "I think that’s one reason they defend each other as much as they do. If I don’t defend my colleagues, they won’t defend me when I get in trouble."
And too often, Banja says, money can be a deciding factor in whether to tell a patient about another doctor’s error.
"A doctor may get a patient where there is not much question that the patient is there because of a botched job at another hospital. But the problem is that if they reveal that to the patient, that would be the last time they get a referral from Podunk Hospital," he says. "There’s an unfortunate, dark financial dimension to a lot of this."
Culture can determine how scenario plays out
The ethics of the situation often are quite clear, says Monica Berry, BSN, JD, LLM, DFASHRM, CPHRM, vice president of risk management and loss control for the Rockford (IL) Health System in Rockford. Berry also is president of the American Society for Healthcare Risk Management (ASHRM). If the information appears to be important to patient’s health, or if it appears to be a significant health care fact that the patient does not know for some reason, it is the duty of the health care provider to disclose that information, she says. The risk of liability and a lawsuit against the other physician cannot get in the way of that goal, she adds.
But how do you reach that goal?
"What we’ve seen so far is that physicians overall are very uncomfortable with this, and it’s related to an admission of liability. No one wants to get involved with anything connected to malpractice, even if it’s another doctor that will be sued," Berry says. "All of this is very understandable, but it’s important to educate the physician on how to say what needs to be said."
Getting physicians to do the right thing, and in the right way, will be easier if you already have promoted a culture of safety and disclosure, says Jane Bryant, MHSA, FASHRM, director of risk management at Oconee Memorial Hospital in Seneca, SC. Bryant is president-elect of ASHRM. All physician education regarding disclosure should emphasize that providers must do whatever is right for the patient — even when it is difficult.
Banja, Berry, and Bryant all agree on the main point for education physicians about this dilemma: Caution them not to jump the gun and to proceed very cautiously when they suspect a previous doctor’s medical error is unknown to the patient. Even if there truly was an error and the patient should know, you don’t want the second physician blurting out the news to the patient before other steps have been taken.
The best approach, they say, is to have the second physician contact the first physician with his suspicions. And the physician should realize that, unless he found a pair of scissors in the patient’s belly, they are only suspicions until more information is obtained.
"The second doctor should call the first and say that he’s looking at this information and that information, and it looks like there was a problem and the patient isn’t aware," Berry says. "Let the first doctor have a chance at explaining it. It’s never a good idea to assume you have all the information and you know exactly what happened with the first doctor. You can be surprised."
If, after talking to the first physician, it appears that there was indeed an error that should be brought to the patient’s attention the first doctor should be given the opportunity to deliver the news.
"If you still think an error occurred, the doctor can tell the first guy, I’ll give you a week to call the patient and tell her about this. If you don’t, I will,’" Banja says. "That’s what I’d like to see, but unfortunately that call doesn’t happen. You usually have doctors either tell the patient, That other doctor made a mistake, and you should see a lawyer,’ or they just don’t do anything."
When both physicians are working within the same health care organization, the risk manager can facilitate the conversation, encourage them both to do the right thing, and provide guidance on how to disclose the information. When the doctors are not allied in any way, the second doctor’s risk manager can help by calling the risk manager at the other organization to keep everyone informed and assure that the motive is only to do the right thing for the patient. In any case, physicians should be encouraged to contact the risk manager first for guidance.
The pecking order
Risk managers endorse the idea of letting the first doctor disclose the error. But if that does not happen, the burden still is on the second physician. In that case, Berry and Bryant recommend having the doctor provide as much factual information as possible to the patient, but nothing more. Avoid emotions, opinions, and recommendations for actions. Particularly if the first physician denies the suspected error, the second doctor should be careful to avoid any accusations of outright error or liability.
"Provide the patient with what you do know. You can say that we see these clinical findings, they usually stem from this type of care, and we think it affected your health in this way," Berry says. "You can state that we contacted your first physician on this date and asked that he speak with you, and our goal here is to just let you know everything we know."
Advise physicians to keep their emotions out of the conversation. What the patient does with the information is then up to him or her. Risk managers caution that the doctor — and the risk manager, if you’re sitting in on this meeting — should absolutely avoid any mention of liability or lawsuits. Do not volunteer that the patient should talk to a lawyer.
"But if it comes up from the patient, you have to address it," Berry says. "This can be very difficult. If the patient asks whether the other doctor committed malpractice, you can say that is always a difficult question decided in the courts and that you can’t give legal advice. Don’t deny the patient any information, but don’t encourage a lawsuit, either. It’s a fine line."
Most of the liability risk lies with the first physician, the one suspected of the error, but risk managers caution that there is plenty of liability risk to go around if the situation is not handled well. If the second physician acts rashly and accuses the first of malpractice, a slander suit could result. Slander suits can be costly and ugly.
But also, there is some liability risk if the second physician does not act on the information. Research has shown very clearly that patients sue more for how they were treated after an error than for the error itself, and Bryant says the second physician becomes part of the problem if he or she does not disclose an apparent error. Banja agrees, saying that he has seen cases in which patients were infuriated that the people who knew of an error did not tell them. Particularly with surgery, he questions whether a patient can truly give informed consent if he does not know the actual, underlying cause of the surgery is a previous medical error.
"I heard of one case in which a surgical team left something in the patient’s belly, leading to lots of complications; and four or five doctors down the line all saw the error in the chart. The patient was never told," he says. "I wonder whether an imaginative attorney could sue those doctors for somehow being complicitous in a fraud. I don’t think that’s a big stretch."
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