"Disclosure gap" remains, despite overall trend toward transparency
Executive Summary
Disclosure after medical errors is still not done consistently, partly due to clinicians’ continued concerns regarding liability exposure. Some ethical considerations are:
• organizations’ lack of success in creating a culture of transparency;
• the potential need to simultaneously hold systems and individuals accountable;
• the importance of the concept of forgiveness to the medical profession.
Despite more than a decade’s worth of laws, regulations, and guidelines about the requirement for disclosure after medical errors, there a remains a large "disclosure gap," says Robert D. Truog, MD, director of Harvard Medical School’s Center for Bioethics in Boston "that is, there is a significant gap between what we say we should do and what we actually do."
This has become less of an issue when major errors occur, as systems are in place to assure that the events are not covered up or slip through the cracks. "But we have not been fully successful in creating a culture of transparency, where clinicians see patients and families and partners in care with a commitment to free and open communication," says Truog.
Truog says that one of the biggest impediments to this transformation remains fear of lawsuits. "Although clinicians systematically overestimate the true magnitude of this risk, there is no doubt that until the malpractice system is reformed, this will remain a substantial impediment to full and open disclosure," says Truog.
Trend toward nonpunitive approach
The trend toward early, proactive error disclosure is clearly going to continue, says Jon C. Tilburt, MD, MPH, Division of General Internal Medicine and the Biomedical Ethics Program at Mayo Clinic in Rochester, MN. "I think at some point in the history of the profession, providers felt like it was within our control to just slip on error disclosure, partly because of benevolence and partly self-serving intent," he says. "The backdrop of that was largely an ethic of personal responsibility and blame."
The pendulum has now swung in the opposite direction, says Tilburt, toward a nonpunitive approach that focuses more on system factors and avoids placing blame on a specific individual.
"At some point, we might find that this generally positive trend, of continuing to maintain this non-punitive framework, will be tested," says Tilburt. "Sometimes individuals make wrong choices and we can’t entirely get them off the hook, either." Future approaches may need to simultaneously hold systems and individuals accountable, he suggests.
Public expectation will drive trend
There is a great deal of focus on potential engineering solutions that can prevent medical errors, notes Tilburt, but the complexity of medicine presents some unique challenges.
"So this utopian fantasy that we can somehow engineer our way to a perfectly safe health care culture is probably ill-conceived," says Tilburt. The question then becomes how to assign responsibility when mistakes inevitably occur, he adds.
The trend toward disclosure mirrors a similar movement toward transparency in all areas of health care. "That train has left the station and we’re not going back," says Tilburt. "Whether day-to-day practice lives up to that ideal is an area of ongoing concern."
Public expectation is one component driving the trend toward disclosure. "We have gone from This is not an expectation, and we do not do it,’ to This is an expectation and we do it sporadically,’ and that’s happened in the last 20 years or less," says Tilburt.
Tilburt expects to see a continued increase in disclosure of errors, along with systems designed to help that process. "I think incoming generations of medical students and residents are going to see this modeled a little bit more," he says. "They will bring in some of their own expectations. That will nudge the profession in the right direction."
One ethical consideration is whether the concept of forgiveness gets lost in the engineering approach to patient safety. "All of that work is wonderful, but if you can have an authentic human encounter with another person and be vulnerable, all sorts of unexpected things can come out of that," Tilburt says. "I would hate to see us beat that out of the profession."
- Jon C. Tilburt, MD, MPH, Biomedical Ethics Program, Mayo Clinic, Rochester, MN. E-mail: [email protected].
- Robert D. Truog, MD, Director, Center for Bioethics, Harvard Medical School, Boston, MA. E-mail: robert.truog@childrens.
harvard.edu.
