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With more hospitals and health care facilities developing policies, procedures, resources, and training modules to address disclosure of mistakes, the primary role of ethics committees and clinical ethicists is to support, encourage, and even insist that their organizations have such policies, procedures, and resources in place, says Martin L. Smith, director of clinical ethics at The Cleveland (OH) Clinic.
"The winds of change’ have definitely had an impact on how hospitals and their personnel approach and view medical mistakes," says Smith. A former medical culture characterized as "shame and blame" has shifted to prevention of mistakes, learning from mistakes, disclosure and apology to patients and families, and offers of fair compensation, he notes.
The percentage of hospitals and health care systems that are revising or developing new disclosure policies is on the rise, according to David M. Browning, MSW, LICSW, clinical social worker at Massachusetts General Hospital in Boston and senior scholar emeritus at Boston Children’s Hospital’s Institute for Professionalism and Ethical Practice.
"When clear mistakes occur — and especially if a mistake results in serious or significant harm to a patient — honesty is the best policy," says Smith. This means an honest, factual disclosure to the patient and family, and informing them what will be done to correct the problem or systems that led to the mistake so that it is less likely to happen again.
"Although patients and families are likely to be shocked and angry that a mistake has occurred, many will find consolation in knowing that actions are being taken to prevent the same mistake from hurting someone else," says Smith.
There are many challenges to disclosing errors — a feeling of shame, fear of what colleagues will think, concern about damaging a professional reputation, being blamed for a bad outcome, and the possibility of legal action, acknowledges Lisa Lehmann, MD, PhD, director of the Center for Bioethics at Brigham and Women’s Hospital and associate professor of medicine and medical ethics at Harvard Medical School, both in Boston, MA.
"Nevertheless, I think health care institutions are beginning to realize that disclosure is the right thing to do," she says. "Ultimately, I believe that we need moral courage to ensure that we can tackle the challenge of error disclosure. But we also need a health care system that values disclosure and is not punitive."
"What is the threshold for disclosure?" This question is often asked when institutions begin making efforts to improve disclosure practice.
"There is always debate in institutions about disclosing near misses," says Browning. "Of course, from the standpoint of patient safety, near misses should always be reported and studied within the institution, in order to reduce the potential for errors in the future."
Smith says one approach is to view medical mistakes on a continuum, with near misses on one end of the spectrum and mistakes causing serious harm on the other. "The more significant or serious the harm to a patient, the stronger the ethical obligation to disclose the error to the patient and family," he says. "From my perspective, there is a weak or non-existent ethical obligation to disclose a near miss to a patient."
However, an organization still needs to have processes and procedures in place for personnel to report near misses to quality-improvement and patient-safety officers, says Smith. In this way, process improvements can be put in place to prevent similar situations from harming patients.
As medical systems become increasingly transparent, there are fewer and fewer situations in which it is ethical not to disclose an error, argues Browning. "There are certainly circumstances where the clinical argument can be made that disclosure is not in the patient’s interest," he acknowledges. "But these arguments can sometimes be self-serving on the part of clinicians and, ultimately, paternalistic toward the patient."
In some hospital systems that have embraced open disclosure, clinicians are required to initiate an ethics consultation to justify not disclosing, in order to be able to thoroughly explore the ethical integrity of that course of action. "Disclosure should always occur when there has been harm. But it should also occur under less dramatic circumstances, when the error may result in a change in medical treatment now or in the future," says Browning.
Patients or family members may already have the feeling that something untoward has happened. "Failure to communicate at these times can erode the patient’s trust," says Browning.
Patients and families want more than disclosure of mistakes, especially if serious harm has occurred. "They also want — and hope for — an apology," says Smith. "This can get tricky."
Providers often struggle with whether to convey an "expression of sympathy," such as stating, "I’m sorry this happened to you," or an "expression of responsibility," which includes a statement taking responsibility for the mistake such as, "I’m sorry that I/we did this to you."1
"I think patients and families greatly prefer and need an expression of responsibility,’ while, in our litigious society, there will be fear that an expression of responsibility’ can be used in court against the hospital and health care professionals," says Smith.
Browning says that the ethics of transparency require clinicians to be unambiguous from the standpoint of honesty and accountability in these situations with their patients, with words such as, "I/we made a mistake. This is my/our responsibility. I am truly sorry."
Increasingly, risk-management representatives and hospital attorneys are encouraging this kind of transparency, along with policies and practices ensuring that clinicians will be fully supported if any legal action ensues," he adds. Browning says that a good and ethical disclosure requires clinicians to:
"Essentially, there has been a rupture in the clinician-patient bond," says Browning. "Clinicians should enter these conversations with this recognition, and with the hope that the bond can be slowly rebuilt."2
Browning says that in his experience, bioethicists aren’t always involved in developing disclosure policies. "This is not to say that bioethicists are not interested, or that they should not be centrally involved; only that the push towards more transparency in health care has come from broader forces and specific sectors of health care systems connected to improving quality and safety," he says.
In some cases, however, bioethicists have been central to the development of better disclosure policies and greater transparency with patients and families. "One of the interesting challenges here is for bioethicists to recognize the very wide range of ethical issues that manifest themselves in the context of patient safety and quality improvement efforts," Browning says.
For bioethicists to be helpful, says Browning, they need integrate their ethical insights with a host of other significant factors affecting these conversations. These include the nature of the error, the institutional context of the error, and the need for follow-through with patients and families that extends well beyond the initial disclosure.
In order to be more effective in disclosing serious errors, some health care systems have implemented a coaching model, as recommended by the National Quality Forum, the Leapfrog Group, and other organizations. "This was the model we taught in our educational workshops," says Browning.
The goal is to establish a core group of clinical and patient safety leaders who provide "just-in-time" guidance to clinicians who are about to disclose an error.
"When coaches are trained in the ethical dimensions of these conversations, they can convey these dimensions to clinicians," says Browning. "They can invite them to think about how they would want this error disclosed to them if they were in a similar situation, and how they would want to be treated."
Ethicists can be very helpful in ensuring that a high quality disclosure occurs when there is an error, says Lehmann, as follows:
"There is clearly a need for more education surrounding error disclosure," says Lehmann. "We need to cultivate strong role models who acknowledge responsibility and are transparent about errors."