Despite the way it appears, an unexpected medical outcome is not always the result of someone’s mistake. “It is important to avoid assuming an error has occurred without proper review and investigation,” says Renée Bernard, JD, vice president of patient safety at The Mutual Risk Retention Group in Walnut Creek, CA.

For this reason, apologizing for a bad outcome is not always appropriate at the time of the ED visit. “The ED provider should reach out for just-in-time coaching from their insurance company or hospital risk manager prior to participating in a formal apology,” Bernard advises.

EPs should never hesitate to express empathy for what the patient or family is going through.

“But formal apologies for a medical error should be undertaken only after proper investigation of the facts and vetting with the provider’s hospital and insurance company,” Bernard stresses.

Anytime there is a deviation in the standard of care that causes physical harm to a patient or financial impact due to increased care needs, Bernard says there is an ethical obligation to disclose it. Deviations in the standard of care that are apparent at the time of care include errors in medication or blood administration, mismanagement of psychiatric patients under involuntary hold statutes, and wrong-side procedures (such as a chest tube placement).

Bernard offers several suggestions for ED providers seeking to mitigate legal risks in real time:

  • Practice excellent communication.

This establishes trust. “Literature supports that patients are less likely to sue providers who they trust as forthcoming and genuinely caring,” Bernard offers.

  • Focus on the patient’s care needs first.

Explain to the patient or decision-maker what changes are needed in the patient’s care plan.

“This is required as part of the consent process,” Bernard notes.

  • Make sure that an error cannot be repeated in the ED on the same shift or in the future.

“Initiate a review of the systems to make sure the same error won’t happen to other patients,” Bernard says.

  • Keep the disclosure objective and based on medical facts.

“Often, providers do themselves no favors by attempting to explain an unexpected medical outcome or error prior to a full review of the care or facts,” Bernard says.

A better approach is to inform a patient that the care will be reviewed to understand what happened and how it happened.

  • Avoid speculating about what happened or blaming others.

“This simply does not help a provider,” Bernard says. “In fact, it makes [providers] appear less professional.”

  • Continue caring for the patient medically or accommodate the patient’s request for a new provider, if possible.
  • Provide a point of contact for the patient or family member to follow-up with care questions and to learn more about what happened.

“It is very important that patients feel heard and receive responses to their concerns in a timely manner,” Bernard explains.

  • If the ED has instituted a communication and resolution program, this process should be followed once the patient is stabilized or it is safe for the provider to shift attention from patient care.

“It is important to maintain a patient focus. Avoid shifting into an adversarial position with the patient,” Bernard cautions.

  • Notify risk managers if the unexpected outcome appears to have been preventable.

This ensures everyone adheres to hospital policies and that the right person initiates an appropriate investigation of the outcome. “Providers need to be aware of both hospital policy and their insurance company policies for notification of unexpected medical outcomes that appear to be preventable,” Bernard says.

Generally, patients will become distrustful if providers bring a risk manager or legal representative to the bedside. This can appear self-serving. “However, some risk managers are, in fact, patient liaisons and may be the exact patient representative that the provider needs to engage,” Bernard says.