When, how to disclose a provider's errors

Disclosing a medical error is never easy, but it can become especially complicated when you need to tell the patient that a previous provider was in the wrong. This delicate situation often requires communication with the other provider before you tell the patient anything.

Once you have identified that an error occurred with another provider, or you suspect so, there should be no question about following up, says John C. Metcalfe, JD, FASHRM, vice president of risk management services with MemorialCare Health System in Fountain Valley, CA. It is unacceptable to simply ignore the situation and make no effort to inform the patient, he says.

However, in many situations, it is important that you not simply tell the patient as soon as you suspect there has been an error, he says. The second provider should contact the first and discuss the concerns, he says. "We contact the other hospital and make a determination in collaboration with that hospital about the disclosure," Metcalfe says. "We give the other hospital the opportunity to follow their own procedures for disclosure, because they might not have known about the error or the consequences of the error."

That collaboration might not always be possible, however. If a patient's X-ray reveals a retained sponge or needle from surgery at another facility, for instance, Metcalfe says there would be no time for collaborating because the patient would need immediate surgery. In such a case, Metcalfe's hospital would inform the patient right away and then alert the other provider about the finding.

Even determining the provider that committed the error can be difficult, Metcalfe says. If the patient had undergone a series of surgeries, for instance, it might not be clear who left a sponge behind. "We've had cases in the past where the patient indicated they had undergone a surgery fairly recently, and the easy assumption is that's where the error occurred," Metcalfe says. "Then we found out that the error actually occurred up the road a bit more, two or three surgeries back."

When the provider at fault is not clear, Metcalfe's hospital tries to contact all the providers that might be responsible to alert them and let them determine the answer. But he says the facility ultimately is not obligated to determine which other provider committed the error and sometimes must simply inform the patient and let him or her pursue the matter further.

Each case must evaluated individually, says Vivian Barker Miller, CPHQ, LHRM, CPHRM, FASHRM, senior risk management specialist with American Society for Healthcare Risk Management (ASHRM). There is no single correct way to address disclosing another provider's error, she says. "The goal must be to do the right thing for the patient, the family, and also the provider," she says. "Don't forget that this will be a significant issue for the provider. They are going to feel awful about this error and the consequences."

Although swift disclosure is necessary in some cases, providers usually should take a step back and carefully consider the situation before informing the patient that another provider erred, says Matson Sewell, MS, MPH, CPHRM, principal with Matson Sewell Healthcare Consulting in Sacramento, CA. Sewell has held multiple risk management positions with healthcare providers and was chair of an ASHRM task force on disclosure after adverse outcomes.

Providers should be cautious in declaring that another hospital erred because it did not treat the patient as they would have, Sewell says. (See stories, below, for one doctor's experience with disclosing another's error, and for potential risks from being too quick to disclose.)

First determine if the other hospital's treatment falls into an acceptable range of treatment, Sewell advises. "Are we assuming that if they didn't do it exactly the way we would have done it, that it's an error?" she says. "Sometimes it's absolutely clear cut that they took the wrong approach, but I've often seen people assume it was a wrong approach when it really just wasn't the way they would have done it."

Doc tells patient provider not happy

Doing the right thing doesn't guarantee that everyone is going to be pleased, says Frederick S. Southwick, MD, professor of medicine in the Division of Infectious Diseases and quality projects manager for the senior vice president for health affairs at the University of Florida Shands Health System and the University of Florida College of Medicine in Gainesville.

Shands has a policy of transparency when it comes to medical errors, Southwick explains. When an error occurs, the policy is to immediately inform the patient and offer restitution. The result has been a marked reduction in malpractice insurance premiums, Southwick says.

"Legal fees have plummeted, and the money they spend goes to the people who deserve remuneration: the injured patient and their family," he says. "Under the standard approach, over 60% of malpractice funds go to the lawyers."

Southwick once encountered a situation in which had to disclose to a patient that an error had occurred under previous care by another physician, and he says the experience shows how difficult that can be. "As an infectious disease consultant, I was asked to see a patient who had a severe postoperative infection after a prolonged delay in the initiation of antibiotics. The patient asked me if he should have been treated earlier, and in the spirit of honesty and openness, I told him, yes he should have been treated earlier," Southwick says. "I then informed the physician who had consulted me about the patient's concerns, and we together contacted our risk management team. They in turn discussed in detail the patient's concerns with him, and they forgave his hospital bills and provided him with compensation for his lost time at work."

The patient was satisfied, Southwick says, but the other physician's initial reaction was not positive. "The physician who inadvertently delayed the initiation of antibiotics was unhappy with my response, but after I explained that this strategy would greatly reduce the likelihood of a malpractice suit, he understood my approach, and we remained friends and close colleagues," he says.

Hasty error disclosure can damage others

Tertiary care providers can be so influenced by seeing the end results of a supposed error — the patient's condition is worsened — that they make overly harsh judgments about the previous provider's care, says Matson Sewell, MS, MPH, CPHRM, principal with Matson Sewell Healthcare Consulting in Sacramento, CA. Those judgments can cause serious damage to the facilities.

What seems to be an error or substandard care should be judged not with perfect hindsight but in light of what information was available to the provider at that time, Sewell says. "That's the mistake that I see people make: an assumption of error without investigating whether an error really occurred," she says. "I'm afraid a lot of tertiary care facilities do have a certain amount of professional arrogance with respect to the community hospitals' care."

The provider that discovers the error can assume it is doing the right thing by immediately informing the patient, but that self-satisfaction can come at a price. Rushing to disclose a supposed error to the patient, without first confirming that the other facility truly was at fault, can damage your relationship with that facility, Sewell cautions. "Unfortunately what I see usually happen, and around Boston this is almost epidemic, the provider basically criticizes the care of the referring hospital, never even tells that hospital there was even a concern, and that is taking professional potshots from a distance," she says. "It does cause problems. In small communities you have to work and shop and go to PTA meetings with the doctor you're criticizing, so you just want to be sure about what you're saying."

Sewell also points out that disclosing a provider's error might lead to a legal claim, and the doctor who discovered it might be called as an expert witness. This potential situation is not a reason to avoid disclosing a true error, but it is a reason to avoid being overly judgmental about the other provider's care or too hasty with disclosure, she says.

"The other thing to know is that if litigation is initiated, your own care will come into scrutiny," Sewell says. "I've seen cases in which the disclosing physician ended up being the primary defendant, not the person whose error he disclosed, and the plaintiff was awarded damages."