Honesty isn't only the correct ethical and legal choice. It can help you avoid a lawsuit, or at least mitigate the damages.
Honesty isn't only the correct ethical and legal choice. It can help you avoid a lawsuit, or at least mitigate the damages.
No physician is immune from making a mistake that could injure or kill a patient. But when that happens, what do you say to the patient or his family? In this era of mega-buck malpractice awards and aggressive regulators eager to punish "bad apples," how forthright can you afford to be? Is honesty really the best policy?
Legally and ethically, the answer is Yes. Honesty may be a good strategic move, too. "A breakdown in communications is one of the leading causes of litigation," says Grena Porto, director of risk management for VHA, an alliance of some 2,000 community hospitals. "Patients will often forgive honest mistakes when they are disclosed promptly, fully, and compassionately. But people become enraged when they suspect they're being stonewalled."
Daniel P. Groszkruger, a health care attorney in Carlsbad, CA, asks his physician clients this: "At what point did the patient feel more comfortable talking to a plaintiffs' lawyer than to you? Patients seek out attorneys when they think they can't get an honest answer out of the doctor or hospital."
What injured patients and their families want most is a full explanation, an apology, and some assurance that health professionals have learned from the mistake, says Barry C. Dorn, an orthopedist in Lexington, MA, and associate director of the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health.
While everyone seems to be on the full-disclosure bandwagon, no one is saying it's an easy ride. "It takes careful analysis to determine what went wrong, and whether the fault lies with human failures, system failures, or a combination of both," says Jeff Driver, chief risk officer at Beth Israel Deaconess Medical Center in Boston. "Meanwhile, patients and families want answers now."
On the flip side, some physicians are too willing to accept blame that isn't rightfully theirs. "Doctors tend to blame themselves for bad outcomes," says Dan J. Tennenhouse, a physician and risk management expert in Mill Valley, CA.
"While it's obviously wrong to avoid patients after a bad outcome, many doctors go in the opposite direction. Because they don't have all the facts or they don't understand the legal concept of negligence, they convey a sense of guilt that isn't really deserved. That encourages patients to sue."
A 35-year-old patient being closely monitored for liver function had an MI. Reviewing her record, her internist noted that 10 months earlier, the patient's cholesterol had been 380. Although he had initialed the test result, he didn't follow up on the problem, since he was focusing on the liver studies.
"This physician called me and asked, 'Should I tell her to sue me?' " recalls Deborah McBride, vice president of risk management for Midwest Medical Insurance in Minneapolis. Instead, McBride explained to him how he should discuss the error with the patient. "He ended up showing the patient the missed high cholesterol level and telling her that he probably would have treated her with medication if he'd seen it. But he went on to say that the medicine still might not have prevented the MI.
"A frank talk about the patient's complex medical picture left both physician and patient feeling satisfied. The patient continued with this doctor and never sued."
As this doctor did, it's wise to contact your insurer or hospital risk manager before approaching a patient. "Talking it out first can prevent you from blurting out words you'll later regret," McBride says. She remembers being paged one morning by a physician whose patient had died unexpectedly. "The doctor was devastated," she recalls, "and there was no way he could talk to the patient's family right away. I spent 90 minutes on the phone with him, letting him vent and discussing ways he could approach the family. I encouraged him to get rid of the medical jargon.
"He composed himself and had a very compassionate conversation. He was never sued. It was an unfortunate and rare outcome, and the family understood that."
This example also illustrates how important it is to plan what you'll say. Suppose a patient takes an unexpected turn for the worse, and you suspect an error was made, but you aren't sure. "Don't speculate," advises attorney Dan Groszkruger. "Tell the patient what you know for sure, express sympathy for what happened, and promise to keep him updated as you investigate."
The worst way to reveal bad news is to appear rushed, or to make it seem as if the conversation is a nuisance. "I favor making a big production out of this discussion so the patient knows you're taking it seriously," says Tennenhouse. "You want to send the message that it's your highest priority to explain what happened and answer any questions.
"Hold the discussion where no one else can overhear," he adds. "But there's nothing wrong with having a nurse or resident present if he or she can provide needed support. Or involve hospital social workers or chaplains, if that's appropriate. Whenever possible, include the family. So many suits occur because a family member went to see an attorney or pushed the patient to see one."
VHA's Grena Porto offers additional advice: "Use plain English. Don't interrupt when the patient asks questions. Be prepared with a plan of action. What's the next step in the process? How will you attempt to mitigate the injury? If the patient died, talk to the family about an autopsy and promise to get back to them with the results."
But realize there's no set script for these conversations. "You have to tailor the information to the patient," says Porto. "Is he emotionally ready to hear the news right now?"
When should you apologize, or use the word "mistake"? While some malpractice insurers counseled against apologies in the past, most now say there are times when they're appropriate, and needed.
But an apology needn't admit legal liability. "If you didn't do anything wrong, you can't apologize," says Tennenhouse. "Wording is crucial. I'd never use the word 'negligence,' because that's a legal term. Also, words like 'wrong,' 'error,' 'mishap,' 'incorrect,' 'inadvertent,' 'mistake,' and 'accident' all suggest that someone should be blamed. What you should say is 'I'm sorry you had this complication' or 'I'm very sad that it turned out this way.' "
When there's little doubt that a mistake caused an injury, such as giving a patient the wrong medication or dosage, "I can't see how saying the words 'mistake' and 'apology' will make any difference," says attorney Dan Groszkruger. "You won't be any worse off legally. The liability is clear and it's in the record. So be honest and say so."
But don't go overboard. Some risk managers cringe at the overwrought apologies doctors have made. Among them: "I'll never do this operation again," "I'm sorry I've made such a mess of things," and "I feel so guilty I don't care what happens to me." Risk managers also advise against using words like "terrible" or "devastating." These overemphasize the mistake, as well as invite blame and lawsuits.
On the other hand, never pass off a mistake as unimportant. "Well, you're all right now, so let's not worry about it" or "Your mom was so ill that she wasn't going to survive much longer anyway" are clearly insensitive and flippant.
After an apology, it's especially important to find ways to minimize the degree of injury and keep the patient fully informed about the next steps. "Make sure to waive any bills," says Tennenhouse. "If an insurance company is involved, waive the entire bill, not just the copay."
The way you respond immediately after learning of an unanticipated outcome could determine whether you'll be sued. How would you handle the following scenario?
The patient was seen two days ago with vague abdominal complaints. Your diagnosis was viral enteritis. Today, you are informed the patient was admitted by another physician to a hospital with peritonitis from a ruptured appendix. What do you do?
"I'd get to the hospital promptly to express my concern for the patient," says Tennenhouse. "If you don't, the patient may get a negative idea about why you missed the diagnosis. Patients have a common but wrong perception that appendicitis is a disease that any doctor should be able to diagnose in time to prevent a rupture. This is an opportunity to say, 'Your clinical presentation was different than what's typical in this situation.' Describe the typical symptoms to make it clear what was different about the patient's. This was an unavoidable event that was no one's fault. A good conversation may convince the patient of that."
When you're having such a conversation with a patient, never blame anyone else, even if others share responsibility for the mistake. So you should never say something like "The pharmacist should have picked that up," or "Radiology should have clearly marked the correct level." Says Tennenhouse, "If your remarks instigate a lawsuit against someone else, don't be surprised if you're drawn into it as a co-defendant."
Nor should you lay the blame on managed care or the hospital's policies. "Suggesting that economic factors or liability prevention measures are responsible for a complication is especially aggravating to patients," adds Tennenhouse.
Finally, don't blame the patient himself for poor health habits. While it may be true that the patient would be in better shape if he didn't drink, smoke, or eat too much, that isn't what he wants to hear after a poor outcome that might have been caused by your negligence.
Do patients need to be told of adverse outcomes that almost happened? While there's no legal obligation to disclose negligence that didn't cause an injury, risk managers disagree over what doctors should say in these situations.
Let's say a patient almost received the wrong drug or dosage, but the mistake was caught in time. "What would be the point of telling him this bad thing almost happened?" asks Steve S. Kraman, chief of staff at the Veterans Affairs Medical Center in Lexington, KY. "It would just undermine his confidence in health care. The same applies if he actually received the wrong drug but had no effect from it. I wouldn't necessarily disclose that."
In other situations, disclosure may be called for. "If there was a heparin overdose with no immediate consequence, you'd still need to monitor clotting times more frequently," says VHA's Grena Porto. "The patient should be told why he's getting stuck so much. Or perhaps you infused the wrong blood type into a patient. The injury may not be apparent until a future transfusion reaction. In that case, I'd disclose the error to the patient. But these incidents have to be decided case by case."
Some attorneys dissent from the push for full disclosure. "Our legal system punishes candor," says Bryan A. Liang, a physician-attorney who teaches at Southern Illinois University School of Law. "There are all the incentives in the world to keep your mouth shut, because what you say can be used against you in court. That reality isn't always recognized by academics who tell you to disclose all your mistakes. They're spending other people's money."
Many malpractice insurance policies state that the physician must not admit liability without the consent of the carrier, and must not hinder defense of the claim. "Saying 'I apologize' or 'This was my mistake' can easily be construed as an admission of liability," says Liang. "The physician could lose his liability coverage and be deselected by a health plan. You cannot be so brazen as to ignore your own financial lifeline."
Others in risk management dispute Liang's arguments. "I'm not aware of a case where a doctor's coverage was jeopardized because he disclosed an error or apologized," says Grena Porto. "Physicians should discuss this with carriers before any incident. If a carrier balks at the idea of full disclosure, I'd switch carriers."
Liang laments that legal rules thwart open discussion of medical errors. "The sad thing is that health professionals are desperate for a safe harbor where errors can be discussed. Even the confidentiality of peer review has been pierced by plaintiffs' attorneys, and I fear this will expand."
Mark A. Kadzielski, a health care attorney in Los Angeles, shares some of Liang's misgivings. "It's always appropriate to express sorrow and sympathy," he says, "but we must recognize that our tort and regulatory systems look to punish people who make mistakes, not reward them for their honesty.
"Let's say there is a misadventure in surgery," Kadzielski continues. "How do we know that was the proximate cause of the outcome? What about the other medications the patient was taking that he may or may not have disclosed to the surgeon, or his previous history he may not have been so candid about? That's why it's wrong to blatantly say, 'I did x, and x was what caused the result you had.' In our legal climate, a doctor can't own up to blame that isn't really his."
For the past 14 years, the Veterans Affairs Medical Center in Lexington, KY, has had a policy of "extreme honesty" about medical errors. Patients and their families are informed immediately about mistakes. The hospital's risk management department works to ensure that victims of errors are fairly compensated for injuries. Toward that end, the hospital assists patients in filing claims and finding attorneys to bring suits.
When risk managers were studying adverse outcomes back in 1987, they turned up an incident of negligence that the patient's family apparently was unaware of. The administration felt the hospital had a duty to notify the family about the negligence, even if that meant having to defend a lawsuit. "If we're liable, we say so," says Steve S. Kraman, a pulmonologist and the hospital's chief of staff.
The financial consequences of this policy have been surprisingly positive. "The total number of cases increased, but the cost per case declined significantly," says Kraman. "We average about 14 cases a year where we make payments. That's high for a VA hospital. But the average payment per case is only $15,000. The average in the VA system is closer to $100,000.
"In the vast majority of cases, people don't stay angry when they realize they're being told the truth and are being treated respectfully," continues Kraman. "For their own peace of mind, we suggest they get independent corroboration that they're being dealt with fairly. Some get attorneys, and some don't."
Patients who've been contacted by risk managers often become "partners" in patient safety efforts at the facility. "They want to know how the hospital can improve things so the errors don't keep happening," Kraman says. "The culture has changed so that health professionals aren't afraid to disclose errors. They know this is the only way to study and prevent them."
Could "extreme honesty" work in the private sector? While risk management experts applaud the VA, they have doubts. "It's a promising approach, but the doctors and nurses at the VA are employees of the federal government. They can't be sued individually. That changes the incentives about disclosure," says Bryan A. Liang, a physician-attorney who teaches at Southern Illinois University School of Law. "A physician in private practice is at much greater legal risk. Also, the patient base at VA hospitals isn't the same as the general population, and that may have an impact on the litigation results."
Says Mark A. Kadzielski, a health care attorney in Los Angeles, "I'm skeptical. There are many levels of immunity from liability, because it's a government hospital."
Still, some malpractice insurers and private hospitals are studying the program, Kraman says.
Do be honest. If you don't tell a patient about an error, someone elsepossibly an attorneycertainly will. Covering up a mistake may result in lengthening the statute of limitations or inflating the damage claim.
Do act quickly to correct treatment errors, and to change policies and procedures to lessen the chance that an error will happen again.
Do plan your conversation with the patient or family to ensure the information conveyed is factual, objective, complete, and free of medical jargon. Remember, anything you say can be used as evidence in a lawsuit.
Do contact your malpractice insurer, but don't assume a bad outcome is malpractice.
Don't make off-the-cuff statements or guess about causes.
Don't assign blame or point fingers.
Source: Midwest Medical Insurance Co.
Mark Crane. What to say if you made a mistake. Medical Economics 2001;16:26.