Take these steps for good’ disclosure
Fear of malpractice litigation is overblown
Fears about the potential harm to physicians who practice disclosure have been overblown, according to Richard C. Boothman, JD, executive director of clinical safety at University of Michigan Health System in Ann Arbor, where an early disclosure and offer program has been in place since 2001.
"It is also important to note that the act of disclosure has not been the focus of litigation," he says. "I’ve never seen a case in which a physician got sued only for what he said."
Boothman notes that patients still need to show violations of the standard of care with resultant harm to successfully sue for malpractice.
"Still, because you cannot un-ring the bell’ once an imprudent statement is made, we advocate only intelligent disclosures," says Boothman. "Speculation, unwarranted mea culpas, and temper tantrums in the heat of the moment are not advisable."
Here, Boothman gives recommendations on how to disclose errors, based on the organization’s experience:
• Who should be present?
This answer should be determined on a case-by-case basis, says Boothman. Some families and patients do not want to speak with the doctors who they believe made mistakes, while others won’t settle for anything less than a face-to-face meeting.
"Some patients and families won’t likely be appropriate in that setting, and we feel the need to buffer and protect our staff," Boothman adds. "Others only want to talk with someone in charge.’"
• What information should and should not be disclosed?
"Every event is different, but we do draw some lines," says Boothman. "We do not discuss personnel issues and discipline, for instance."
Financial considerations are kept separate from factual disclosure. "We try to adhere to intelligent’ disclosure. We only disclose facts, not conjecture, speculation, or assumptions," he says. "If we’re not sure about a material fact, we say that."
Details of quality reviews aren’t routinely disclosed, says Boothman, but this information is shared occasionally depending on the circumstance.
• Should any offers be made along with the disclosure?
Boothman says that it’s a bad practice to blend financial and factual discussions, regardless of how clear the facts appear or how limited the compensation might be.
"Before you can speak respectfully about compensation, you must first understand all the implications of an event," he says. "Listening is the first priority for us. So we disconnect those two. We concentrate first on getting the facts straight."
• What if insurance company does not agree with the disclosure?
This is an important point to clarify before starting a disclosure program, advises Boothman.
"Many physicians mistakenly believe that their insurance policies specifically prohibit these kinds of discussions," he says. "I’ve seen hundreds of policies and have never seen anything like that in an insurance contract."
Most physicians confuse this with the obligation to cooperate with the defense-of-a-claim clause. "Any caregiver considering adopting components of disclosure into their practice would be well-advised to ask their personal lawyer for an opinion first," adds Boothman.