Bad news bearers: Telling patients about infections

Straightforward apology can head off lawsuit

As patient safety becomes more of a mainstream movement, the issue of disclosing and apologizing for infections, medical errors, and other adverse events is coming to the fore. No longer is the preferred strategy to see, hear, and speak no evil.

That said, it should surprise no one that the primary obstacle to patient disclosure of an adverse event is fear of litigation.

"I think we would all agree that the main reason that people do not want to tell [patients] what happened is because we are afraid we are going to get sued," said Janet Frain, RN, CIC, CPHQ, CPHRM, director of infection control, risk management, and quality improvement programs for Sutter Medical Center in Sacramento CA. "Can we get sued anyway? Absolutely."

Indeed, roused by national legislation and highly publicized reports of medical errors and nosocomial infections, patients have come to expect more openness and accountability in health care. When they are met with it, they actually may be less likely to sue following a bad outcome. "We have seen a huge evolution of how we manage patient events," Frain said recently in Baltimore at the annual conference of the Association for Professionals in Infection Control and Epidemiology (APIC).

"Disclosure of adverse outcomes is not easy," she explained. "It is one of the parts of my job I look forward to the least. It can be very emotionally charged, but it does bring closure to some patients." Some patients or family members, however, are traumatized by the event and may want to call and talk about it months later, Frain noted.

An ICP since 1975 and a risk manager for a decade, Frain recounted personal experiences with informing patients or family members of such events as a surgical fire in the operating room, inadequately cleaned bronchoscopes, and a patient fatality after an overadministration of pain medication. While ICPs will have to consult their own policies and state laws, Frain generally erred on the side of full disclosure and a carefully worded apology.

"There is a fear that if I apologize to a patient that means I am going to admit fault or negligence," she said. "An apology and admission of fault or negligence are totally different. We can let the courts decide fault or negligence.’

Never having to say you’re sorry?

The health care culture is not exactly apology-friendly, Frain explained. "Why is it so hard in medicine? Physicians are trained to be infallible. There is again that big fear that if I apologize to a patient I will get sued. But I will tell you, from working with patients, sometimes that is all they want."

She cited survey data that showed patients are 50% less likely to sue if the medical error is disclosed with an apology. "Forty-one percent of people who sue say they would not have taken that action if the health care team had apologized," Frain said. "So it really gives us pause and makes us consider how we approach an apology."

State laws may vary, but in California, statements and gestures of sympathy are not admissible as evidence. "That means if we write a letter to a patient or tell them we are sorry this happened, that is not admissible as evidence in court. Statements that actually reflect fault or responsibility are admissible," she added.

In addition, malpractice insurers have differing opinions on disclosure and may place hospitals at odds with their independently insured physicians. "Many malpractice carriers will give mixed messages to their insured," Frain said. "Our malpractice carrier supports full disclosure. However, many of our physicians’ malpractice carriers do not support full disclosure."

If the hospital policy is to disclose and apologize following a medical error, the process must be thought out carefully and handled delicately. Know what the hospital policy is on disclosures and what exactly is going to be disclosed. "This is where the risk manager can help you in terms of framing how information is going to be disclosed to a patient," she said.

Agree on who should be present and who will do the disclosure. "One of the things you don’t want to do is gang up on the patient," Frain said. "You don’t want six people in the room."

In addition to an apology, patients often want to be assured that the event will never happen to anyone else. "They really want to know what will be done to prevent a recurrence," she explained.

Tell the patient exactly what happened, and explain what measures have been done to prevent it happening again, Frain advised.

Don’t personalize the event or assign blame to a particular staff member. "It’s OK to say, I’m sorry.’ You don’t want to cast blame." she said. "You don’t want to say the name of the staff involved. You don’t want to say, Nancy gave you way too much medication and now we have fired her.’ That is not the information you give to patients."

Many patients will want the person responsible fired, but they should be told only that the hospital is following its human resources policies for all employees involved in the error. "Don’t disclose any actions during the peer-review process," Frain added. "Remember, peer-review information is protected in most states."

Anger and tears

Disclosure meetings are emotional. It comes with the territory. "You have to bring Kleenex into these meetings, and you may want to a have a social worker or pastoral care colleague there," she said. Likewise, separate meetings with the staff involved also are very emotional, as those involved in the error may feel great remorse. They generally should not be involved in the meeting with the patient.

"Sometimes, the patients are so angry at either the physician or the nurse that we do not put the two of those people together," Frain noted.

"[However], we usually try to get the physician to help us with the disclosure process. Most of the time, that is with whom the patients have the relationship," she said.

Don’t talk about money during disclosure, but give the patient a hospital contact to handle any such claims or provide other information. "They need time to think about it, process, and think about other questions that may come up," Frain continued.

A somewhat unpredictable element is how the patient is going to react to the disclosure of an adverse event. "We have had a time or two when we had security outside the office," she said. "You can almost always expect a reference to legal action. Disclose everything you know anyway."

Bad press certainly is a possibility, so involve the public relations staff in the event from the onset, she recommended. Document in the patient’s medical record that a meeting was held with the family and note who were present and what was disclosed. "We are not hiding anything," Frain said. "Remember, they have a right to that record. Explain how you are going to follow up. For example, with the [surgical fire] patient we had to transfer to another hospital, we wrote the whole plan of [follow-up] care."

After reviewing the main strategies, she went through a couple of hypothetical cases. For example, imagine you are an ICP at hospital and a patient has died of legionella infection. It is the first case of legionella you have had at the hospital.

"You do a full epidemiological investigation including culturing tap water," Frain said. "The tap is positive for the organism. Would this be something at this point in time you would disclose to a family member? No. We don’t have enough information. All we know is that we have a potential problem here."

The patient’s death is unexpected so you conduct a root-cause analysis as required by the Joint Commission on Accreditation of Healthcare Organizations. As you assemble your team and begin investigating, you find that the respiratory therapy department was using tap water rather than sterile water to rinse out the patients breathing equipment. This is against hospital practice but was done because there was no sterile water available. Asked if they would now disclose the incident to the patient’s family, some of the audience hesitated.

"I will argue with you that we have, in fact, found a medical error, haven’t we?" Frain said. "When we have people taking shortcuts bypassing processes, we have found a medical error. I would argue that at this point someone should tell the patient’s family what happened. When you find that you have medical errors that contributed to a patient’s death, that patient’s family deserves to know that information."

On the other hand, consider the all too frequent case of a patient who develops a methicillin-resistant Staphylococcus aureus (MRSA) infection.

"I find this to be one of the most difficult conversations we have," Frain pointed out. "We don’t know if there is a medical error around MRSA, unless you have outbreak going on and you know you have an index [case]. You have to differentiate patient education from disclosure of a medical error or an adverse event. Those are two different conversations. Ninety-nine percent of the time we never know where that MRSA came from. Is it likely the patient got it in the hospital? Probably. Is there definite causation? We don’t have that information. So in that case, we are not really doing disclosure. It is more patient and family information."