Disclosure of error taps 'very deep cultural norms'

Clinicians have "truth-telling obligations"

[Editor's note: This is a continuation of Medical Ethics Advisor's March coverage of disclosure of medical errors and apologizing for errors in the March issue.]

There are many reasons why disclosing errors is the right thing to do within health care delivery, according to Nancy Berlinger, PhD, MDiv, and deputy director and research scholar at The Hastings Center in Garrison, NY.

For starters, the Code of Ethics of the American Medical Association includes language pertaining to physician obligation. "With respect to patient autonomy, with respect to honoring the patient as a person, [it] means you tell this person what is going on with their own health,"Berlinger tells Medical Ethics Advisor.

"Embedded inside the core obligation of patient-provider communications, there's the disclosure obligation, and with the recognition that sometimes, when you're telling the patient about their health, you're telling them about harms that occurred in the process of providing care," she notes.

Furthermore, disclosing error is part of the basic human acknowledgement that you have hurt someone.

"This taps into very deep cultural norms about what good people do, what good behavior — what ethical behavior — is between people," Berlinger says. "One of the ways we don't harm people is we don't lie to them; we don't fail to tell them something that's materially important . . . and this wasn't invented by medicine; this wasn't invented by culture, but you can see how this is all braided together."

Suffering an injury within the health care environment can have serious consequences for a patient's health, because they are typically sick to begin with.

"And also because not only is there the possibility of physical injuries, but also there are economic consequences; the cost of repairing health care harm can be quite significant," she says. "And that's the issue that gets taken up when we talk about disclosure, is how will the information being disclosed be dealt with? How do we resolve what happened?"

Berlinger notes that a particular legal scholar suggests differentiating into separate issues medical error disclosure and apology by the clinician who either caused the error him- or herself — or it happened to a patient under his or her supervision — and the determination of how to address the patient harm.

That's because the person responsible for patient care is "not necessarily the same person who has the ability to negotiate a financial settlement or to arrange the details of care," she says.

Therein lies the organizational ethical accountability to the patient, she adds.

A person who is injured during the delivery of care is "probably the most vulnerable person in the health care system," Berlinger says. "A patient is a vulnerable person because they're sick, they're hurt, they may not be conscious . . . they don't have their own clothes. But a patient who got hurt in the health care system is doubly vulnerable."

To that person, she notes, "we owe them rather a lot."

Without the truth from the health care provider when an injury has happened, she says, a patient might actually blame himself or herself without knowing the facts of what actually happened.

"So, when you get at these issues of error and response to error, we're talking about fairness questions, justice questions," she says. "So, this is why we locate this inside of ethics, rather than just inside of law, or just inside of medicine."

U. of Michigan Health System example

The University of Michigan Health System in Ann Arbor is an example, Berlinger says, where the approach to medical errors goes far beyond the idea of "I'm sorry."

"Certainly, it's there, and they are doing rigorous analysis of what is needed institutionally to respond to injury, but also to learn from injuries to prevent other injuries," she says.

In an article in the Journal of Health & Life Sciences Law, Richard C. Boothman et al. note that "Studies that have examined patients' reasons for seeking legal help following unanticipated medical outcomes suggest that caregivers' reluctance to disclose actually may drive patients to lawyers' offices."1

In the study, the authors describe a program that "responds to the identified drivers of medical malpractice" — with guidelines for how to proceed both before errors occur and "after an unanticipated outcome occurs."

The first guideline prior to errors is this: "Create realistic expectations about the proposed treatment or surgery in both patient and caregiver via thoughtful, thorough communication. Informed consent is an opportunity to set reasonable expectations, not just a legal hurdle to be crossed. Likewise, patients' responsibilities are acknowledged and documented."

After an unanticipated error occurs, the system's first plan of action is this: "Patients/families are approached, acknowledged, and engaged in the acute phase."

The last two lines demonstrate, importantly, that actions are being taken toward the goal of preventing that mistake or injury from occurring again. For example, the program advises, "The patient's experience is studied for improvements that later are shared with the patient and family." Likewise, "Future clinical care is monitored via metrics established and measured to evaluate efficacy and durability of improvements."

"With few exceptions," the paper states, "(usually characterized by imposition of strict liability), in our society we are expected to act reasonably, not perfectly, under the circumstances. Medicine is an imperfect science, and medical care is, in most cases inherently dangerous."

The authors note that as one of the Michigan surgeons often comments: "Clairvoyance is not the standard of care."

In fact, Boothman, who is chief risk officer at the University of Michigan Health System, and architect of this approach to medical errors and claims management, tells MEA, "I don't concern myself too much with ethics, because the complexities of these cases and these events lead me to the conclusion that I think it would be presumptuous of me to impose my own set of ethics in those situations."

"The ethicists aren't there rummaging around in somebody's belly and then they have a problem. Or they're not there when that baby's delivered. And I've been through thousands of conversations with some of the most highly trained, well-meaning human beings in the world — who humble me every day — [and] who are scared to death when something bad happens," Boothman says.

Rather than the physician trying to analyze what went wrong and apologize in the "heat of the moment," Boothman says instead, "What we've done here is create a very expert, and always available, support team, and we say to our staff, 'Don't try to do this. Even the most socially mature of you can't [disclose errors] in the heat of the moment. You won't have all the facts; you'll be struggling with complex emotions that go in every direction.'"

"What we want our staff to do is to pledge to patients that we will get to the bottom of it; we will give them the most accurate information as it comes available to us; and we want our staff to stay in the saddle with those patients — no matter how angry they are — and pay attention to the immediate care needs," Boothman explains.

Boothman says the "real cost" of the traditional deny-and-defend approach is that if the clinician or institution doesn't acknowledge that an error or problem has occurred, then "you can't move to fix it."

"I have my own sense of ethics, but I am painfully aware that it's not my rear-end that's in the sling if something bad happens," Boothman notes. "So, I don't impose my ethics. But I did very consciously [design this approach] with this notion that if we don't review these incidents with complete honesty, we will never improve."

Reference

  1. Boothman, RC, Blackwell, AC, Campbell DA, Jr. et al. "A Better Approach to Medical Malpractice Claims? The University of Michigan Experience." J. Health & Life Sci. L. 2:2; 125-159.

Source

Nancy Berlinger, PhD, MDiv., Deputy Director and Research Scholar, The Hastings Center, Garrison, NY. E-mail: berlingern@thehastingscenter.org.

Richard C. Boothman, JD, Chief Risk Officer, University of Michigan Health System, Ann Arbor, MI.