If Family Gets Only Silence After Bad Outcome, Plaintiff Attorney Likely Next Call
Answers can prevent some litigation
An ED nurse inadvertently put a nasogastric tube into a patient’s lung and administered charcoal. The 35-year-old man, who had come to the ED because of a barbiturate overdose, died within minutes. The nursing supervisor’s advice was, “Don’t tell the family anything.”
“But I thought it was very important that the family know exactly what happened and why,’” says John Tafuri, MD, FAAEM, regional director of emergency medicine at Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland. One reason was that the family would likely find out, since an autopsy was probable. Shortly after the patient’s death, Tafuri, who was director of the ED at the time the incident occurred, told the family exactly what occurred. “There was never any lawsuit filed, and I think that was because of the communication that occurred at the time,” Tafuri offers.
When a patient dies unexpectedly, either in the ED or shortly after discharge, “the traditional thing to do is not tell the family anything. That creates suspicion,” Tafuri says.
To the family, it appears the ED is hiding something. Some file a lawsuit because there’s no other way to find out what really happened. “If they don’t get answers from the physician or the hospital, they will call a plaintiff attorney and say, ‘No one will talk to me,’” Tafuri notes.
If the family is too emotionally distraught at the time of the ED visit for this kind of conversation, it should occur shortly afterward, within a few days, Tafuri offers.
“If you are not honest with the family at the time of the incident, you are setting yourself up for the family to be very angry and vengeful,” Tafuri warns.
Root Cause Analysis
At Fairview Hospital, a team of people communicates bad outcomes to the family. The group includes a risk manager, an ombudsman, and usually one clinician (a director or another physician who is experienced in communicating bad news).
“In general, we like to have directors involved. It gives a little more gravitas to the situation,” Tafuri says.
Before the team approach was implemented, a director was the designated person to communicate with the family. “He or she was not directly involved in the case, and presents less of an issue from a legal standpoint,” Tafuri explains. The purpose of the meeting is to acknowledge that there was an unexpected bad outcome, to explain how it occurred, and to answer all the family’s questions.
“We put any unknowns to rest, so the family understands what really happened,” Tafuri says. This means the family has no reason to file a lawsuit just to find out. Once the family files suit, and the plaintiff attorney has invested time and money in the case, everyone has an incentive to continue pursuing the claim. Sometimes, this is true even if it becomes evident that no negligence occurred. “If you can avoid an attorney being involved in the first place, that is much better,” Tafuri adds.
The meeting usually occurs three to five days after the ED visit. This allows the team to gather all the facts before talking with the family.
“Sometimes, the details of what happened are not immediately known,” Tafuri says. Multiple caregivers are involved in complicated cases. “We often will get all of the caregivers in a room and perform a root cause analysis of exactly what happened. Because of scheduling, this can take some time.”
Concerns that talking openly about the bad outcome will plant the idea to sue are unfounded, according to Tafuri. Since the bad outcome was unexpected, the family already is curious about what happened. “We are not fanning the fire, or starting a fire that doesn’t already exist,” Tafuri says.
People usually appreciate the honesty. Few are inclined to seek legal recourse after meeting and learning the facts. “It’s the right thing to do for the patient and family, but also for the hospital as well,” Tafuri says. “We firmly believe it helps reduce our legal risks, and does not seem to stir up any issues.”
Teams are trained to communicate about bad outcomes by role-playing with mock scenarios, with local actors playing the part of distraught family members. “One scenario that was used was an incidental lung nodule that was not noticed and turned into cancer six months later,” Tafuri recalls. EPs are encouraged to contact risk managers after an unexpected bad outcome for guidance as to the best course of action, communication-wise. “Every situation is a little bit different,” Tafuri notes. In the case of the misplaced nasogastric tube, it was very clear what had happened, so the decision was made to tell the family right away. “I felt it was important to get it out there right away, so the family would go home with a clear understanding of what happened,” Tafuri reports.
Other cases are more complicated. If it’s less clear what occurred, the family is told, “We’re going to look into this for you, and will call you to set up a meeting so we can discuss it in a lot more detail.”
However, EPs are not prohibited from speaking directly with the family right at the time of the bad outcome. One reason is that the state’s apology statute offers some legal protection. “Sometimes, everything was done exactly as it was supposed to be, but the EP can still say, ‘We are very sorry that your family member passed away,’” Tafuri says.
The family meetings have challenged the long-standing belief that anything the ED provider says to the family can be used against them legally, so it’s better not to tell them anything.
“That’s what the lawyers have said for years. Maybe legally that’s correct, but emotionally I don’t think it’s correct,” Tafuri offers.
Once families have all the facts, “many times they can move on,” Tafuri says. “But if they don’t get the answer, they will keep pursuing it.”
- John Tafuri, MD, FAAEM, Chairman, Regional Emergency Medicine, Cleveland (OH) Clinic. Phone: (216) 476-7312. Email: [email protected].
At one Ohio facility, a team communicates dire news to families. This team includes a risk manager, an ombudsman, and usually one clinician such as a director or another physician who is experienced in communicating bad news.
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