'Full disclosure' approach to errors may be costly

Could lead to increased exposure to lawsuits

A policy of full disclosure — that is, a situation in which physicians and hospitals are disclosing to patients all serious adverse events due to medical care — is recognized as the most ethical approach to communicating medical errors. But as new research shows, it can have some less than desirable consequences.

A new study by the Harvard School of Public Health, Brigham and Women's Hospital, and the Harvard Risk Management Foundation1 indicates that under a universal full disclosure policy, "the total number of malpractice lawsuits is likely to rise as many patients will be 'prompted' to sue, and malpractice costs will consequently increase."2 Some proponents of full disclosure, they note, had argued that such an approach might actually lead to fewer law suits.

"The conventional wisdom is that disclosing injuries will dissuade patients who otherwise [might have] sued from doing so, because they would be less angry, and [see the staff as] more compassionate," notes Michelle Mello, JD, PhD, of the department of health policy & management, Harvard School of Public Health, and one of the authors. "It seems right, but there is a huge reservoir of unlitigated injury, and the possibility [full disclosure] might prompt even a small percentage who otherwise would not have sued might outweigh [those who are dissuaded from suing]."

In undertaking the study, she explains, "We were interested in applying the evidence we have on the epidemiology of medical injury and malpractice claims to see the effects of a world of full disclosure on the volume and cost of malpractice claims." A group of physicians reviewed a random sample of 1,452 closed malpractice claims from five liability insurers "to determine whether a medical injury had occurred and, if so, whether it was due to medical error."3

The researchers then "analyzed the prevalence, characteristics, litigation outcomes, and costs of claims that lacked evidence of error."4

Hypothesis proved

Mello says the hypothesis that a full disclosure approach would lead to greater litigation was proved. "The 'headline finding' was there would be a 95% chance under our model that the total number of claims would increase, and a 60% chance it would double," she reports. "In terms of cost, there was a 94% chance they would increase, and a 45% chance they would at least double."

Would something less than full disclosure then be a better financial strategy? "That seems to be the direction in which our model points," says Mello. "But it's not what we advocate; we think disclosure is the right thing to do."

In terms of other quality considerations, such as patient satisfaction, Mello says that again the full disclosure approach may have mixed consequences. "It absolutely could have [an initial] positive impact on patient satisfaction," she says. "When people feel they are being dealt with honestly they are likely to react positively."

The problem, she says, is that a lot of patients would become aware of problems they otherwise would never have been aware of. "So ultimately it could have a negative effect on patient satisfaction."

Change your approach

On the bright side, Mello continues, "our model assumed the world we live in now in terms of how claims are dealt with, and what would happen when we move to full disclosure," she observes. "However, when you do move to full disclosure, you should also develop compensation programs [for patients affected by medical errors]." By offering compensation to patients in those situations that are warranted, she explains, "people who otherwise might bring lawsuits would have an alternative."

In any event, full disclosure is gradually becoming a reality, says Mello, adding that a few states have instituted full disclosure requirements. "As a regulatory requirement of The Joint Commission, it has been in place already," she notes. However, she adds, compliance with the requirement is incomplete. "Enforcement will probably harden at some point, but it takes a while for institutions to move staffs toward compliance with new approaches," she explains.

References

  1. Studdert DM, Mello MM, Gawande AA, Brennan TA, Wang YC. Disclosure of medical injury to patients: an improbable risk management strategy. Health Aff (Millwood) 2007; 26:215-226.
  2. Ibid.
  3. Ibid.
  4. Ibid.

For more information, contact: Michelle Mello, JD, PhD, department of health policy & management, Harvard School of Public Health, 677 Huntington Avenue, Boston, MA 02115. Phone: ( 617) 432-0217.