Disclose errors, but proceed with caution — Poorly done disclosure could backfire legally
Executive Summary
Disclosing errors that harmed patients is potentially protective against liability claims, but poor disclosure practices can cause problems.
- Avoid speculating why an error happened.
- Participate in role-playing exercises to increase comfort with disclosure.
- Consider designating a risk manager to support physicians in disclosure.
Disclosing mistakes that harmed patients is a moral obligation for physicians, but it also might protect them against liability claims, according to Peter J. Pronovost, MD, PhD, senior vice president of JHM Patient Safety and Quality and director of the Armstrong Institute for Patient Safety and Quality in Baltimore, MD.
Pronovost says patients generally file lawsuits only when two things happen: when a bad outcome occurs, and when the patient loses trust in the clinician.
"Anytime that trust is breached and the patient perceives you are trying to hide something, the relationship is done," says Pronovost. "It’s really hard to recover from that."
Physician credibility is almost always an issue in litigation, says Richard C. Boothman, JD, executive director of clinical safety at University of Michigan Health System in Ann Arbor. Boothman is assistant adjunct professor in the Department of Surgery at University of Michigan Medical School. "Getting caught hiding or obfuscating an error can inflame a jury and exacerbate the verdict," he adds.
There is no data on the percentage of physicians who disclose errors, says Boothman, but some physicians have done this disclosure long before it became a hot topic in healthcare. "When I was in the private practice of law, I was always aware that there were doctors who simply accepted that professionalism and ethics included being honest with their patients, even when things didn’t go well," he says.
Boothman observed that these physicians were rarely sued. "These physicians did not look to insurance claims people for instructions about their professional obligations to their patients," he says. "They created personal bonds with their patients that survived unexpected clinical outcomes." (See related story on how to disclose errors, p. 45.)
Here are ways to avoid pitfalls when disclosing errors to patients:
• Never try to explain before you’re reasonably sure what happened.
"Far better to pledge disclosure once the dust settles, than try to do it before you have all the facts and a balanced view of what happened," says Boothman.
Physicians sometimes speculate on why an error happened, when in fact they really don’t know the cause of it.
Pronovost recommends physicians state, "We’re going to look into it and find what happened and will share that with you. In the meantime, we are going to care for you and your family."
• Obtain training before you disclose.
Many physicians have had no training on disclosing errors to patients, and even if they do, they have no experience in actually doing so.
"Talking to patients about how we harmed them is incredibly threatening," says Pronovost. "There is a huge opportunity for malpractice insurers to train physicians in good disclosures." This should be done not with e-learning, but with simulated role playing that allows physicians to become more comfortable disclosing mistakes, he advises.
• Consider designating someone to disclose errors.
A large group practice could assign a particular individual to support clinicians in disclosing errors, suggests Pronovost. "It might be the group risk manager," he says. "Insurers might consider providing this service." (See related story, below, on how to disclose errors.)
- Richard C. Boothman, JD, Executive Director of Clinical Safety, University of Michigan Health System, Ann Arbor. Phone: (734) 764-4188. Fax: (734) 936-9406. Email: [email protected].
- Peter J. Pronovost, MD, PhD, Sr. Vice President, JHM Patient Safety and Quality, Director, Armstrong Institute for Patient Safety and Quality, Baltimore, MD. Phone: (410) 502-6127. Email: [email protected].
