Articles: Medical Errors
Will apologies to patients drive med mal attorneys out of business?
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Studies have shown that the primary factor in a patient’s
decision to pursue a medical malpractice case is lack of communication
from the provider after an unexpected outcome or undesirable result
has occurred. Often a patient’s decision to sue was influenced
not only by the original injury, but also by insensitive handling
and poor communication afterwards.
Some individuals file suit and persist through the years of legal
proceedings because they do not want someone else to get injured
by the same mistake. Often the question asked of healthcare providers
is, “What is the organization doing to find out how the
event occurred and prevent it from happening again?”
The Joint
Commission on Accreditation of Healthcare Organizations (JCAHO)
published a standard in 2001 that requires healthcare providers
to inform patients and their families about unanticipated outcomes.
An immediate outcry was heard from risk managers, doctors, and
others who were fearful of the implications of telling patients
the truth about errors. Compliance with this standard is not universal;
there is still considerable resistance and fear rooted in the
perception that admitting mistakes is not safe in a culture that
still subscribes to blame and punishment as methods for ensuring
accountability. According to a 2005 survey of physicians and risk
managers, the risk managers were more willing to participate in
discussions with patients that used the word “error”
than were the physicians. The surgeons were the least likely to
admit to error. [1] A 2002 survey found risk managers who expressed
the most concern about malpractice litigation were the ones who
were the least likely to disclose mistakes. [2]
The 2007 JCAHO
National Patient Safety Goals, which affect all accredited healthcare
facilities, were released in June 2006. The focus on patient safety
continues with Goal 13: “Encourage patients’ active
involvement in their own care as a patient safety strategy”
13A: “Define and communicate the means for patients and
their families to report concerns about safety and encourage them
to do so.” [3] The subject of patient safety has come out
of the closet.
A June 2006
announcement verified the success of the 100,000 Lives campaign
sponsored by the Institute for Healthcare Improvement. It is estimated
that 6 initiatives implemented to varying degrees in 75% of US
hospitals saved 122,000 lives in the last 18 months [4] Patient
safety and the disclosure of errors continue to be troublesome
aspects of healthcare. Many healthcare providers believe a number
of myths, including that there is no real ethical or legal duty
to disclose medical errors to patients or that patients do not
really want to know about errors in their care. However, patients
expect acknowledgement of even minor errors. In one study, only
60 percent of doctors believed that a patient should always be
told when a complication occurred. [5] Doctors are less likely
to disclose mistakes that result in serious injury or death. In
some studies, physicians said that they do not disclose errors
for fear of further harming patients or of losing the patient’s
trust. In one study, thirty-three percent of physicians said they
would offer incomplete or misleading information to a patient’s
family if a mistake led to a patient’s death. The reasons
for dishonesty to patients were associated with the emotional
devastation felt by a physician associated with being involved
in an error, pressure to be perfect, anxiety about losing professional
reputation, and fear of litigation.[6]
A study of
1,747 open and closed Michigan claims reported an analysis of
the interval between the report date (when the doctor learned
of the first lawsuit) for a first claim and the loss date (the
date of the alleged negligent incident occurrence) of a second
claim. During any given quarter, an insured physician’s
average risk of being named in a lawsuit was 5 percent. But during
the three months following the report date for the first claim,
a physician’s risk for having a patient encounter that led
to a second legal action almost tripled to 14.4 percent. The risk
of a second lawsuit remained elevated for a two-year period after
the initial notice. The study suggested a circular relationship:
being named in a lawsuit increases stress, which in turn impairs
clinical performance and increases exposure to subsequent liability.[7]
Some doctors
do not disclose errors because of the belief that if they tell
the truth, they increase their chances of being sued. Only one
to two percent of negligent adverse events led to actual claims,
but physicians estimated their risk of being sued is about three
times the actual rate.[8]
Healthcare
systems are achieving results with disclosure models. Catholic
Healthcare West supports “The Mistakes Project”, which
recognizes that patients are far more likely to seek legal representation
if they believe that information has been concealed from them.
Timely disclosure of mistakes is cost effective from the standpoint
of the institution. Fair compensation is discussed with the family
as part of the disclosure of the mistake. At University of Michigan
Health Systems, encouraging doctors to apologize for mistakes
is part of a broader effort to help doctors feel comfortable in
being honest with their patients. Annual attorneys’ fees
have since dropped from $3 million to $1 million and malpractice
lawsuits dropped from 262 in 2001 to 130 per year.[9]
COPIC, a Denver-based
malpractice insurer who provides malpractice insurance to 6,000
physicians and also insures hospitals and health plans, developed
the “3Rs” program: “Recognize, Respond to, and
Resolve Patient Injury.” The objective of the program is
to respond to patient injuries before they escalate into disputes,
claims or lawsuits by better preparing physicians to disclose
unanticipated outcomes to patients. COPIC’s own risk managers
swiftly evaluate incidents and make settlement offers in cases
in which a patient’s need for fair compensation can be satisfied
without a formal malpractice claim. Savings have been considerable.
As of December 31, 2003, payments to patients under the 3Rs Program
averaged $1,820, as opposed to an average cost of more than $250,000
for traditional paid claims handled by the same insurer, and an
average cost of more than $78,000 for handling claims in which
there was no payment to patients. In summary, organizations that
have practiced open disclosure approaches with patients have found
that it actually decreases their litigation by removing incentives
to sue. [10]
The advice
to disclose errors challenges the traditional legal view to remain
silent when a mistake has reached a patient. That advice serves
to block the ability of fellow doctors and nurses even in the
same facility to get the clinical details of what went wrong in
time to change their system to prevent a repeat tragedy. [11]
The process of apologizing and taking responsibility for errors
is spreading. As of December 2005, nineteen states had enacted
legislation that prohibits apologies from being used against a
doctor in court. Refer to www.sorryworks.net for more information
about efforts to foster disclosure and provide apologies to patients.
The value of offering apologies and the risks of these statements
being seen as admission and used against the healthcare provider
in court will be resolved as more healthcare providers begin to
understand the benefits of being open and truthful with patients
about medical errors. However, the fear of being open and the
impulse to conceal will continue to influence disclosure, and
keep patients heading to attorneys.
References
1. Presentation at ASHRM October 2005 conference
2. Berlinger, N. “Fair compensation without litigation:
Addressing patients’ financial needs in disclosure”,
ASHRM Journal, pgs. 7-11, 24 (1) 2004
3. www.jcaho.org
4. www.ihi.org
5. Berlinger, N. “Fair compensation without litigation:
Addressing patients’ financial needs in disclosure”,
ASHRM Journal, pgs. 7-11, 24 (1) 2004
6. Porto, G. “Disclosure of medical error: Facts and fallacies”,
Journal of Healthcare Risk Management, pgs. 67-76, Fall 2001.
7. Bartlett, E. “Physician stress management: a new approach
to reducing medical errors and liability risk”, ASHRM Journal,
pgs. 3-7, Spring 2002.
8. See note 6.
9. Tanner, L. “Doctors eye apologies for medical mistakes”,
www.yahoo.com, accessed 11/8/04
10. See note 5.
11. Nance, J. A tragic error, and a laudible response,
http://seattlepi.nwsource.com/opinion/202730_sorry12.html,
accessed 12/14/04.
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