Unethical practices may occur when medical errors are disclosed
Ethical issues often overlooked
"We are not completely sure what happened at this time. We are investigating, and will let you know what we learn as soon as possible." Providers may be uncomfortable saying these words to a patient when a medical mistake happens, but speculating about what happened is unethical, cautions Patrice M. Weiss, MD, chair of the Carilion Clinic and professor at Virginia Tech Carilion School of Medicine, both in Roanoke, VA.
For instance, if a mother asks why her daughter, diagnosed with meningitis, didn't have a spinal tap the previous night, a well-meaning physician may respond, "Well, I know the ER was really crazy last night and not all the docs feel comfortable doing taps."
Instead, says Weiss, the doctor should say, "I'm not sure. Spinal taps are not something that any of us do without a clear reason or indication. I was not present and evaluating your daughter last night, so it's not fair for me to guess. But we will review your daughter's care."
Similarly, if a patient's family member asks why wrong-side surgery occurred, a doctor may blurt out, "The wrong leg was prepped and I proceeded," which will simply engender more questions. The doctor might then go on to speculate that the OR staff confused the patient with someone else, that the X-ray films were mislabeled or hung up backwards, or the wrong history and physical was in the chart.
"The main ethical issue is, you put your colleague in a terrible, and at times, no-win position when speculation occurs," says Weiss. "Further, you may foster anger and distrust within the patient."
Right to honesty
The ethical foundation for error disclosure is the patient's right to honesty in communication with health care professionals, according to Sarah E. Shannon, PhD, RN, an associate professor in the Biobehavioral Nursing and Health Systems Department in the School of Nursing, an adjunct professor in the Bioethics and Humanities Department in the School of Medicine at the University of Washington, and a clinical ethicist at University of Washington Medical Center in Seattle.
"Nowhere are we more challenged in our duty as clinicians to uphold honesty than in our communications with patients when a harmful error occurs," she says.
The idea that providers have both a legal and ethical obligation to disclose medical errors to patients or their proxies "appears, curiously, to be a relatively recent phenomenon," according to Ben A. Rich, JD, PhD, professor and an Alumni Association Endowed Chair of Bioethics at the University of California, Davis Health System's School of Medicine.
"This is curious, because 'truth telling' is integral to the establishment and maintenance of any fiduciary relationship, which that of health care professional and patient most certainly is," says Rich. Moreover, the doctrine of informed consent has been a part of the contemporary medical ethos for more than a quarter of a century, he adds.
Disclosure of medical errors is an emerging professional, ethical, and legal norm in health care, emphasizes Shannon.
"Health care professionals must develop a new set of communication skills to be able to do this effectively, compassionately, and expertly," she says, adding that medical schools are just beginning to incorporate error disclosure skills into existing curricula.
The fact that important ethical issues haven't been addressed is making it hard to turn principles into practice, however, says Thomas H. Gallagher, MD, professor of medicine and professor of bioethics and humanities at University of Washington. "All the evidence we have shows that providers are struggling to do this well," he says.
A team approach
Disclosure has been conceptualized as an individual doctor talking with a patient, but errors are made as teams, says Gallagher, and teams should plan and possibly even carry out disclosures.
Since several people are involved with the care that leads to a medical error, this brings up the ethical issue of accountability, adds Gallagher. "All may wonder what their role is in the disclosure process. Whose responsibility is it to be sure the patient learns about what happened?" he asks. "That lack of clarity leads health care providers to hold back and not step forward."
If the physician who accidentally ordered a lower gastrointestinal exam on the wrong patient and the nurse who administered the bowel preparation and took the patient to radiology for the exam are not part of a discussion about how the error reached the patient, key information is lost, says Shannon.
"Both need to contribute to planning for the error disclosure. It may be appropriate for both to disclose the error to the patient," says Shannon.
Unethical practices
Providers may "candy coat" information given to the patient, without fully admitting the error, says Weiss, or fail to maintain the patient's right to confidentiality. "When disclosure occurs, the patient should be asked whom they would like present," she adds.
Providers should not share occurrences involving other providers, or judge the performance of another provider in conversations with the patient or family, advises Weiss.
"As with informed consent disclosures, medical jargon should be entirely eschewed," says Rich. "Most patients do not understand complex medical terminology. Thus, it is a given that one cannot effectively communicate with someone using terminology there is no reasonable expectation they will understand."
Patients who have been harmed by medical error potentially deserve some compensation, but when clinicians think about disclosure, that rationale is completely left out of the equation, Gallagher says.
"In part, that is because the notion of compensating patients for medical injuries is a scary one," he says. "Our system has lots of pieces that are highly dysfunctional. It is still a highly punitive system."
Organizations are starting to combine disclosure with early offers of financial compensation, he reports, and are seeing positive results.
Providers may ignore compensation because they worry about being reported to the state board of medicine or increased malpractice premiums. "But for patients, this is an important issue," Gallagher says. "It really adds insult to injury if you were injured by care and then have difficulty getting compensation for the injury you've experienced."
Policies should include not only disclosure of the medical error, but also the sincere expression of regret, assurance that all necessary care resulting from the error will be provided, and, when appropriate, the waiving of costs associated with such care and reasonable compensation to the patient for any harm resulting from the error, says Rich.
"Such policies instill and exhibit an organizational ethos of error disclosure," he says. "They help to insure that, as a matter of justice and fairness, all patients are treated consistently and equally."
Sources
- Thomas H. Gallagher, MD, Professor of Medicine/Professor of Bioethics and Humanities, University of Washington, Seattle. Phone: (206) 616-7158. Email: [email protected].
- Ben A. Rich, JD, PhD, Professor and School of Medicine Alumni Association Endowed Chair of Bioethics, University of California, Davis Health System. Phone: (916) 734-6010. Email: [email protected].
- Sarah E. Shannon, PhD, RN, Associate Professor, Biobehavioral Nursing & Health Systems, School of Nursing, University of Washington, Seattle. Phone: (206) 543-5211. Fax: (206) 543-4771. Email: [email protected].
- Patrice M. Weiss, MD, Chair, Carilion Clinic, Professor, Virginia Tech Carilion School of Medicine, Roanoke, VA. Phone: (540) 266-6146. Email: [email protected].
Error undisclosed? Mixed messages could be reason Patients want more transparency, not less "We want you to be transparent, but don't admit fault." This is an example of a mixed message that clinicians may get involving error disclosure practices, leaving them to wonder, "What am I supposed to say?" says Thomas H. Gallagher, MD, professor of medicine and professor of bioethics and humanities at University of Washington in Seattle. This may lead to disclosure conversations that, in some respects, are worse than none at all, he says, with incorrect, insufficient, or too little information shared. "We generally see a lack of patient centeredness around disclosure," says Gallagher. "When something goes wrong, it's natural for the provider to focus on how the event affected them. The patient's needs and interests kind of get lost in the shuffle." Some organizations use a coaching model for disclosure, with an expert available to provide real-time advice to clinicians. "That is something that ethics consultants would be ideally positioned to do," Gallagher says. "They can play a proactive role in helping to close the gap between expectations for disclosure and what currently happens." Define errors broadly If a medical error doesn't harm the patient, some providers advocate a "no harm, no foul," approach to disclosure, says Ben A. Rich, JD, PhD, professor and an Alumni Association Endowed Chair of Bioethics at the University of California, Davis Health System's School of Medicine. However, Rich notes that two widely read and frequently cited texts, Clinical Ethics by Jonsen, Siegler, and Winslade (7th ed. 2010) and Resolving Ethical Dilemmas by Bernard Lo (4th ed. 2009), advocate for errors to be disclosed even if patients weren't harmed, or if near-misses occur. Patients tend to conceive of errors more broadly than their doctors do, says Sarah E. Shannon, PhD, RN, an associate professor in the Biobehavioral Nursing and Health Systems Department in the School of Nursing, University of Washington, Seattle. A delay in treatment might be viewed as an error by the patient, whereas a physician considers it to be just an inconvenience. "When writing error disclosure policies, we need to guard against using a restrictive definition of errors, recognizing that patients and their families are likely to prefer more transparency versus less," says Shannon. Health care professionals have sometimes invoked a "therapeutic privilege" exception to the duty to obtain an informed consent as a legal and ethical justification for nondisclosure of medical error, says Rich. "This was based on the presupposition that some patients under certain circumstances are so psychologically vulnerable that disclosure of certain facts about their medical condition or treatment would be so disturbing that the harm or burden of the disclosure would be likely to far outweigh the benefit," says Rich. The argument is that disclosure would undermine the patients' trust and confidence in the competence of their providers, even in the case of patients who would not otherwise fall within the therapeutic privilege exception, he explains. "It is rare for clinicians to be able to credibly claim that they know enough about their patients to determine, to a reasonable degree of medical certainty, how any one of them might react to the disclosure of bad news, whether it is in the form of a grim prognosis or a medical misadventure," says Rich. |
"We are not completely sure what happened at this time. We are investigating, and will let you know what we learn as soon as possible."
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