Part One of a Two Part Article on Adverse Risk Disclosure
By Douglas E. Penner, Esquire
We know that medical errors occur. A prominent study published in 1999 reported that three percent of all hospitalizations involve medical mistakes.2 But when the unanticipated outcome becomes a reality, you should realize the benefits of discussing difficult adverse events with the patient and his or her family.
Why Disclose?
It is always in your patient’s best interest. When a patient experiences an unanticipated outcome of care or a medical error, he or she wants a representative from the organization involved to acknowledge the outcome or event, express empathy, assume responsibility and apologize if any error occurred, and state that corrective actions will be enacted to ensure other patients do not experience similar outcomes.
Disclosure is required by the Joint Commission standard RI.2.90.
It is the ethically responsible thing to do. AMA Opinion 8.121(3) – Ethical Responsibility to Study & Prevent Error & Harm states, in part, that “Physicians must offer professional & compassionate concern toward patients who have been harmed, regardless of whether the harm was caused by health care error. An expression of concern need not be an admission of responsibility…Such communication is fundamental to the trust that underlies the patient-physician relationship…”
There is always an opportunity to learn and improve. Unanticipated outcomes need to be investigated to prevent, if possible, a recurrence in a future patient. A thorough investigation and analysis of all possible contributing factors is the first step in identifying and correcting those system failures. Institutions that are committed to safety regard incidents as evidence that their systems have failed.
Lastly, disclosure has been proven to help avoid litigation or improve results. Several studies have found failure to provide explanations and poor communication generally are associated with litigation. Even if the patient still decides to sue, the healthcare provider will be a more sympathetic defendant and is better insulated from trial lawyer’s allegation of fraud and deceit.
Note that Virginia law excludes from evidence expressions of sympathy, such as “I’m sorry for your loss.” However, any admission made separately or as part of an expression of sympathy is admissible. As an example: “I’m sorry for your loss, I made a terrible mistake.” The “I made a terrible mistake” part is admissible in court. Also keep in mind that a statutory privilege may be attached to some of the post-incident investigation, such as peer review and quality assurance documentation. Legal counsel should be consulted before disclosure of any of these privileged materials.
Keep these considerations in mind the next time you find yourself gearing up for a disclosure conversation. Proper disclosure can impart much needed emotional relief, lessen litigation risk, and may even offer the provider a valuable and cathartic learning experience. <
Part Two of this article will appear in the Summer 2015 issue of Hampton Roads Physician.
1The information contained in this article is intended as risk management advice. It does not constitute a legal opinion, nor is it a substitute for legal advice. Legal inquiries about topics covered in this article should be directed to an attorney.
2Kohn LT, Corrigan JM, Donaldson M, eds. To Err is Human: Building a Safer Health System. Washington, DC: National Academy Press; 1999.
3“Patients and, when appropriate, their families, are informed about the outcomes of care, treatment, and services that have been provided including unanticipated outcomes.”
4See Barnes, Janet, RN JD. A Consensus Statement of the Harvard Hospitals, When Things go Wrong, Responding to Adverse Events; 2006.
5See Va. Code § 8.01-581.20:1.
Douglas Penner is an attorney with the law firm of Goodman Allen & Filetti, PLLC. Mr. Penner specializes in hospital risk management, medical malpractice defense, health care law, and State Board licensing and credentialing matters. For more information, goodmanallen.com.
