Part Two of a Two-Part Article on Adverse Event Disclosure
By Douglas E. Penner, Esquire

In the article that appeared in the Spring 2015 issue of Hampton Roads Physician, we discussed the importance of disclosure.  Here we address handling the disclosure meeting.

Handling Disclosure – A Step By Step Outline 
Patient safety organizations and risk management are constantly attempting to identify areas of healthcare delivery that present avoidable risk of patient harm.  When safety protocols work as intended, they result in “near misses.”  This is when the error or condition is prevented by an error detection barrier (i.e., “the system worked”).

However, the system does not work every time.   When relatively minor harm occurs, a discussion between patient and physician may be all that is necessary.  However, for more severe errors that result in significant harm or even death, a more formal disclosure process is recommended.

1.Manage the Patient’s Condition
The initial focus should be on the patient’s condition and ensuring that the necessary steps are taken to address the patient’s immediate clinical needs.

2.Contact Your Risk Manager, Practice Manager or Legal Counsel As Soon As Possible
These individuals will provide crucial assistance with careful and objective documentation of any medical facts in the medical record, along with preservation of any evidence, if applicable.  In this immediate window after discovery of the harm, an explanation of how or why the event occurred should be deferred until an investigation is completed.

3.Prepare for the Disclosure Meeting
Convene a disclosure team to assist your preparation for the disclosure meeting.  As a team, decide when and where the meeting will take place, and who will attend.   Identify who will lead the discussion and review what will be discussed, avoiding any speculation.  Assess whether the event was a procedural risk or medical error.  Identify a liaison for continued communication with the patient or family.

4.The Disclosure Meeting
The designated individuals, usually two people, will initiate the disclosure discussion with the patient and/or patient representative.   The physician providing care to the patient usually should lead the discussion, but this may not be the case in every situation.  Aim for the meeting to occur within 24 hours of discovering the adverse event.

Express empathy and acknowledge the patient’s/family’s expressed feelings. Consistently communicate what is known or requires follow-up. Ensure patient/family will be kept informed, which means providing appropriate contact names and numbers.  Clarify if the adverse event is an inherent risk of the procedure, rather than an error.  Discuss future known consequences of the injury without speculating about all possible long-term consequences.

After the Disclosure Meeting
A request for a copy of the medical records frequently occurs.  The patient/legal representative is entitled to a copy through the routine request process.

A record should be created of clinical facts relevant to the event discussed with the patient/patient representative.  At a minimum, the documentation in the patient record should include the time, date and place of the discussion, purpose of the conversation and what was discussed (including questions posed and answers), assistance offered, and response to the conversation.  Remember that in Virginia, oral statements made during a disclosure meeting and written documents related to disclosure are not protected from discovery in any legal proceeding.

Conclusion
Organizations should develop clear policies supporting disclosure and enable clinicians to meet their ethical obligations to relate adverse events to patients and families.

*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.

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.