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Malpractice claims involving care provided at the University of Michigan Health System in Ann Arbor’s three emergency departments (EDs) decreased by about half in the past decade, after a disclosure, apology, and compensation program was implemented, estimates Richard C. Boothman, JD, executive director for clinical safety and chief risk officer. Legal expenses and open-to-close time for claims were cut by half organizationwide during that period.1
"Combining all sites, we’ve had a roughly 50% decrease in emergency room claims, from a peak in 2000 to 2011, which is the last reliable year, given generally a two-year statute of limitations," says Boothman.
However, the ED setting "does present some interesting challenges" for disclosure of medical errors, reports Boothman. "ED docs see patients in tiny vignettes of those patients’ lives, and always when the patient is under stress and distress," says Boothman. Rarely is there much of a relationship to provide a platform for disclosures of errors. "Charting is often skimpy compared with less-acute clinical settings and specific memories on the caregivers’ parts years later are rare," adds Boothman.
These factors exacerbate the normal challenges of error-recognition and disclosure in the ED, compared with almost every other clinical environment, according to Boothman. Here are some of the unique challenges of error disclosure in the ED setting, based on UMHS’s experience:
• It often takes emergency physicians (EPs) longer to hear about errors that have harmed patients.
Often, when a mistake injures an ED patient, EPs don’t find out about it right away, in part because patients don’t always return to the same ED.
"We’ve greatly increased our ability to recognize mistakes in a very timely way," says Boothman. "But still, the ED mistakes often come to us second-hand and in a delayed way, from other health care providers and lawyers."
• The disclosure tends to take longer.
The process requires the team to recognize the difference between "reasonable care under the circumstances" and a medical error, defined as "unreasonable care under the circumstances," says Boothman.
"It often takes us a longer time to reach a point where we are confident of our grasp on the facts," he explains.
For all disclosures, he says, it’s always important first to listen to the patient before reaching any conclusions. "But the ED cases seem to entail even more back and forth’ as we try to ensure that we are completely confident in our conclusions before trying any disclosures or explanations," says Boothman.
• Disclosures also tend to be done more often by a member of the Office of Clinical Safety (formerly Risk Management) than by the EP involved.
"The choice of who does disclosures is always tailored to the situation," says Boothman. Some patients don’t want to see their doctors again, and some doctors simply aren’t temperamentally fit for it, despite lots of coaching.
"But the ED cases seem, more than most others, to involve an institutional representative, not just the physician involved," says Boothman. This is due in part to lack of a long-term relationship between the EP and the patient, and also the fact that most mistakes made in the ED are process-related and involve multiple providers.
Still, UMHS has been very successful with ED disclosures when patients feel aggrieved or a lawyer is threatening a claim, says Boothman.
In one case, a patient presented with a pain in his leg, which was later diagnosed as a sarcoma. "The claim was that the ED doc should have made the diagnosis," says Boothman. The patient was represented by an attorney, but no lawsuit was filed. A careful, thorough conversation with the patient and family helped them understand these points:
• That diagnoses sometimes take time to manifest themselves;
• That the EP has only a small window of time to make the diagnosis, which is not always possible with scant or early information, or to provide an appropriate referral, or admit the patient to the hospital.
Many patients do not understand the limited role that EPs play. "We’ve had very good luck helping patients understand that clairvoyance is not the standard of care for an emergency medicine physician," says Boothman.
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