Three keys to optimal results: Disclose, disclose, disclose

Establish disclosure policies and procedures

Traditionally, medical error disclosures have not occurred due to fears of liability, as well as credentialing, sanctioning, and licensing concerns. However, new research suggests that not disclosing a medical error actually can leave a health care provider in a worse position than if the provider had disclosed the medical error, says James W. Saxton, JD, chairman of the health care litigation group for Stevens & Lee, PC in Lancaster, PA.

"For example, failure to disclose leads patients and their families to believe that a cover-up has occurred; and in order to learn what actually happened, they find that only by filing a lawsuit can they discover what occurred," he explains.

"Disclosing medical errors in the right way, by the right people, and at the right time is the better approach for all involved," Saxton continues. "The right way means that we empathize with the patients and their families and apologize for the circumstances without admitting liability." This is not the time to place blame or fault, either, he emphasizes.

"Determining who should be the person or people to speak with the family is very important," Saxton notes. "The primary responsibility lies with the physician, but quality and risk managers should always be involved. Their involvement could include the actual discussion with the patient and family but should also include the investigation of what occurred. By investigating what has occurred, we can move toward continuous quality improvement as we learn from the errors. Measures can then be taken to prevent such errors in the future."

For this reason, Saxton says, it would be beneficial if any policy and/or procedure established also would require that physicians report near misses to their quality managers. "Near misses are a tremendous resource from which we can learn and then prevent medical errors from occurring in the first place," he explains.

"Also, quality and risk managers should be involved in follow-up with the patient and/or the family. A contact person should be established to whom family can direct questions or concerns as they come up as well. Managers should also be instrumental in coordinating meetings with family, especially when more than one health care provider may be involved," he notes.

Saxton lists the following basic legal strategies of which quality managers should be aware:

  • apologies without admission of liability;
  • physician-patient confidentiality;
  • the Health Insurance Portability and Accountability Act (HIPAA);
  • particular state laws on privacy and confidentiality of health information that may be more stringent than HIPAA;
  • peer-review protection.

When creating and implementing policies and procedures, Saxton recommends these do’s and don’ts:

  • Design your goal to increase patient safety and well-being.
  • Create a nonpunitive reporting procedure with clearly delineated exceptions (for example, instances of intentional acts).
  • Determine when and what errors need to be disclosed to the patient/family and/or reported to the hospital, and in doing so, clearly define what is to be disclosed and reported.
  • Define who should speak to the patient and/or family and when.
  • Define exceptions for reporting to the patient and or family (for example, when it might be more harmful to the patient to do so).
  • Recognize that mistakes often occur as a result of the organization of the health care system generally and are not due to any deliberate actions of health care providers.
  • Track errors to increase patient safety.