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An EKG was misread by an emergency physician (EP), and the patient had an adverse outcome as a result. The patient’s family was contacted, and a face-to-face meeting was arranged with the hospital, the emergency department (ED) medical director, and the EP who made the error, who were all in attendance.
"We explained to the family that there was a misread, how it occurred, and why it occurred," says Ryan Domengeaux, JD, general counsel for Schumacher Group, a Lafayette, LA-based healthcare resource company that partners with emergency medicine providers to staff and manage EDs.
The family was previously unaware of the error. "They were very appreciative of our candor, and there was no claim that resulted from it," he reports. This is a typical reaction when patients and families are told about a mistake that occurred in the ED, even if the patient was harmed, according to Domengeaux.
Schumacher Group has had an early disclosure and compensation model in place for many years. "We manage adverse events and claims with honesty, transparency, and humility," says Domengeaux. "Timely communication to a patient or their family about an error in the ED setting is our obligation. I consider it to be as much about patient care as administering actual clinical treatment."
Plaintiff attorneys are usually skeptical that the EP and the hospital will truly be forthcoming about the care provided. "The truth is, they are looking for a fight. That’s what they’ve always gotten with insurance carriers and providers," Domengeaux says. "Everybody keeping their cards close to the vest is what everybody’s experienced."
In the small number of cases in which disclosure has ultimately resulted in a malpractice claim, there has been little lag time between notification of the claim and settlement or resolution, however.
"When we offer the plaintiff attorney an olive branch, it’s amazing to see their transformation," he says. "There is a less of a fight and more of a path to resolution."
If Domengeaux encounters an EP who is reluctant to disclose errors, he reminds him or her that telling someone a mistake was made doesn’t mean that negligence occurred. "The expectation in the legal world is not that doctors be perfect; it’s that they act reasonably and with prudence," he underscores.
Schumacher Group averages about one claim per 38,000 ED visits. In the years since the disclosure program was implemented, annual visits doubled from about two million to four million, while the number of claims has remained stable. "In that time, we have seen absolutely no indication of any increase in claims volume attributable to our practice of early disclosure, of being candid and forthright with our patients and their families when it comes to owning up to a mistake," says Domengeaux.
Even in cases in which patients harmed by an error are compensated, the process is streamlined. "Every situation that I’ve experienced, both in claims management and early disclosure, has always been very favorable when it comes to discussing compensation, if that is an issue ultimately raised," says Domengeaux.
Robert B. Takla, MD, MBA, FACEP, medical director and chief of the Emergency Center at St. John Hospital and Medical Center in Detroit, MI, has disclosed mistakes to patients and family for many years. When he does so, individuals are typically grateful.
Disclosure has also become an organizationwide focus for Ascension Health in the last several years, with an expectation for practitioners to "communicate openly and resolve early (CORE)." EPs more often disclose errors to patients and family.
"It’s the right thing to do. If we made a mistake, we need to accept responsibility and see how we can fix it," Takla says.
Takla acknowledges that it’s possible that disclosing an error could lead to a lawsuit that otherwise wouldn’t have occurred. "You can’t predict when it’s going to lead to identifying a lawsuit that nobody would have even known about," he says. "We do this because it’s the right thing to do. You can’t ask, Would we have been better off financially if we just kept our mouth closed?’"
Takla says that in his experience, however, even when all the elements necessary for a malpractice claim are present, "usually when you disclose, it’s resolved before even going for a summons and complaint, and usually it’s in everybody’s best interest."
Takla routinely discloses even mistakes that didn’t cause harm, such as an unnecessary blood draw or steroid dose intended for another patient. In this case, Takla tells the patient, "Mrs. Smith, I apologize. You were given a medication that was meant for somebody else. It’s a very safe medication, and I don’t expect any adverse outcomes whatsoever, but I just wanted to make you aware. I am genuinely sorry for this."
Some EPs still aren’t comfortable disclosing mistakes, in part because they don’t have a long-term relationship with their patients. "The ER is a high-litigation world," says Takla. "The pace and the uncertainty makes it a more error-prone environment. There is constant workflow interruption."
EPs usually expect that most patients will sue if they have the opportunity, adds Takla. "We deal with enough difficult personalities that are here with ulterior motives, whether for litigation support or because they are drug-seeking or wanting time off work," he says. "It is easy for us to get a jaded perspective."
The vast majority of patients have been very understanding, however, and few expect any type of compensation after an error is disclosed. "Usually what it does is tells the patient that we are human and fallible, but we are also willing to own up to our mistakes and minimize them from recurring," says Takla.
The EP’s apology has to be sincere and genuine, emphasizes Takla. "I really try to get the facts first when I can and disclose as soon as possible. But I treat each situation on a case-by-case basis," he says.
If an error occurs but all the facts aren’t known, Takla tells the patient, "Please give me an opportunity to get all the facts. I promise to get back to you in the next 24 hours."
"Once all the facts are known, I like to have a team approach, which may or may not involve risk management," says Takla. In some cases, he has contacted patients by phone if the error was discovered after discharge. "Sometimes they knew something didn’t happen correctly, and are surprised that we reached out to them," he reports.
Schumacher Group typically completes a peer-review process before the discussion with the patient occurs. This gives EPs a chance to learn the facts before speaking with the patient or family. "If we rush to have a disclosure and then find out we were wrong, then we start to impugn our credibility," Domengeaux explains.
Patients are told upfront that it will take several weeks to review the care provided, but are promised that they will get an honest explanation at that point.
"There’s been times when our providers, unbeknownst to us, have reached out to the patients or family, which is not optimal, but still acceptable," notes Domengeaux.
However, even in cases in which EPs have done so, claims typically don’t result. One EP wrote a letter to a family member stating that he made a mistake and should have ordered a diagnostic test that could have saved the patient’s life. "He basically fell on his sword and said, I’m so sorry about this. I’m going to live with this the rest of my life,’" Domengeaux says. No malpractice claim resulted. "Instead of being polarizing, it had a healing and cathartic effect for everyone involved," he says. "What patients really want is honesty, and that is what we give them."
Domengeaux starts by telling patients, family, and attorneys, "If you choose to use our honesty against us, we can’t stop you from doing that. But it would be a shame for us both if that occurred."
"The beauty in the process is that I’ve just never seen that happen," he says. "The fear is that if you’re honest with people, it’s going to generate more claims. The reality is, the more honest and objective we are, the more positive the outcome."
Without transparency, patients may feel they need to sue EPs simply to learn the facts of what happened. "They want to get to the truth, as opposed to getting to money," says Domengeaux. "We underestimate the ability of a patient and their family to deal with the truth, and we shouldn’t."
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