Articles: Medical Errors
Will apologies to patients drive med mal attorneys out
of business?
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version [pdf])
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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