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Open, honest, and timely disclosure should be the only approach to medical error
The open, honest, and timely disclosure of medical error to patients should be, as Americans say, a “no brainer”. It is ethically, morally, and professionally expected of clinicians.1–3 It is clearly the right thing for patients who frequently say that, when things go wrong with their health care, what they need most is disclosure, an apology, and information about what happened and how it can be prevented from happening again.4
Clinical staff might feel that open disclosure is either too difficult to deliver or labour under the perception that, by doing this, they will increase the risk of litigation. But being honest with patients about errors and mistakes is the right thing for doctors, other clinical staff, and the hospital involved. Open and truthful discussion with the patient is the first stage in promoting and fostering an environment and culture that, through honest discussion, encourages the learning needed to improve systems and thus reduce medical error. Doctors and other clinical staff who are not used to such an approach to discussing errors will need support as such discussions are difficult. But once an error has been acknowledged, discussed, and acted upon, clinical teams can get on with their job of treating the sick.
This all sounds so obvious, particularly to a reporter like me who, during 25 years in journalism, has frequently interviewed patients who have suffered from the health care they have received. But, traditionally, the decision about whether or not to disclose information about an error when it has taken place has largely been left to individuals. Traditions die hard and, while many individual clinicians undoubtedly do deal with such matters openly and honestly, it is clear from public statements of many patients that, even in the 21st century, this does not happen often enough and it is not encouraged in a systematic, organisation-based way. Or, when it does happen, it may not be handled satisfactorily from the patient’s point of view.5
Certainly, my experience has been that, when patients take their stories to the news media, most of their anger is about how they were treated after the adverse event rather than the event itself. Mostly (and there are exceptions), these people have already tried hard to resolve issues through local and official channels and feel that they are not getting anywhere. Going to the news media is an action of last resort, born of frustrated attempts to find out the truth.
In New Zealand in 1995 a patient referred to in a later inquiry as “patient A” was diagnosed and treated for cervical cancer. She discovered that four cervical smears before this had been reported as normal or inconclusive when, in fact, they showed evidence of cancer. Put simply, her cancer could have been diagnosed earlier and, if it had, her treatment may have been considerably less invasive and subsequent health problems avoided. Fearing that many other women may have been similarly affected, she wanted to find out why her cancer had been undiagnosed and tried to get official agencies to investigate. In 1999, believing that was getting nowhere, she felt that she had no option but to take to court the by then retired pathologist responsible for the diagnostic error and the unnecessarily late diagnosis of her cervical cancer. The matter then became public, finally hit the headlines, and set up a train of events that led to the 2001 Gisborne Cervical Screening Inquiry. The problems that were uncovered have led to wide ranging recommendations for improvements to the national cervical screening programme.
The legal battle continued until October 2003 when “patient A” reached a settlement with both the retired pathologist and the Crown. But in an interview a few months before this the patient told me that she would not have pursued the matter for so long if it had been dealt with more openly. She said that her actions would have been quite different if, at the outset, there had been an apology and if officials had responded more quickly to her questions and her concerns about other women.
Similar views were expressed to me by a group of New York patients and their relatives whom I interviewed in 2001; all were in the process of suing their doctors after iatrogenic events. Once again their anger was linked much more to the way they were treated after the event than the event itself. They commonly spoke of feeling betrayed by clinicians they had previously trusted because, they said, their doctors had been unwilling to talk to them openly about what had occurred. They said they understood that mistakes happen, but they expected an honest and “human” response. Some of the patients were suing because they had unanswered questions. Interestingly, one woman had abandoned her lawsuit after getting the information she sought through the legal disclosure process.
So why do clinicians find it so difficult to be open about mistakes and errors? Just what are the barriers? One problem cited by clinicians has been the lack of institutional support for such seemingly risky behaviour as open disclosure. It does seem—at last—that this is changing. In the United States and Australia spiralling medical malpractice insurance costs and large legal settlements have prompted a fresh look at how adverse events are handled.6–9 Amidst the calls for tort reform and no-fault compensation schemes, there is some recognition that open, honest, and timely disclosure may lower legal bills as well as bringing better outcomes for everyone. Despite the reputation of the United States as a highly litigious society, some big insurers and risk management organisations now routinely advocate honest disclosure, as does the American Hospital Association.10 Such action directly challenges previous assumptions that disclosure increases the risk of litigation and may even encourage patients to sue.11,12 Agencies such as the United States’ Joint Commission on the Accreditation of Healthcare Organisations (JCAHO) and Australia’s Council for Safety and Quality in Health Care are using standards to promote such organisational policies and practices.13,14 In the UK, too, the government is introducing to its National Health Service (NHS) a “duty of candour”, requiring doctors to tell patients about negligent acts or omissions which cause harm. A new “redress scheme” is also being proposed, offering remedial care, apologies, and compensation to injured patients and their families.
Another significant barrier is fear—fear that in the United States focuses on malpractice risk15 but which, in a small country like New Zealand with no-fault accident compensation, may equally be about adverse publicity, disciplinary processes, and potential damage to career and reputation. But is such fear justified? Certainly, in New Zealand there have been several recent high profile medical misadventure cases where doctors’ names have been widely publicised as they have gone through the complaints and disciplinary process. It has led to a view that, despite the presence of the accident compensation scheme, the medicolegal/disciplinary environment is a punitive one. However, this view is described by the country’s Health and Disability Commissioner in his latest annual report16 as a “myth”. He points to a dramatic fourfold reduction in the number of medical practitioners facing disciplinary proceedings over the last 9 years and an increasing emphasis on resolving patient complaints through advocacy.
In the United States, where large jury settlements have fuelled medicolegal fears, there are also some encouraging signs that the fear may be worse than the reality. While the hard data on whether disclosure does lower malpractice costs are still limited, there is one notable exception—namely, The Veterans Affairs Medical Center in Lexington, Kentucky where it has been shown that a proactive policy for full disclosure has clearly mitigated the financial repercussions when patients have been harmed.17
More anecdotally, other US hospitals that are actively pursuing such policies also report that it is not hurting them. Hospitals such as Minneapolis Children’s and Boston’s Dana-Farber Cancer Institute have had written disclosure policies for more than 2 years.18,19 In interviews last year their chief operating officers reported that, while it was too early to present claims data, they believed the policies were beneficial not only to staff and patients but also to the organisations themselves. Julie Morath, the Chief Operating Officer for Minneapolis Children’s Hospital, said that they initially thought they would have to sedate their lawyers. “They got very anxious about the implications [of a disclosure policy]. But we see it as our obligation, our values and standards, our promises to families. Our legal counsel provides counsel about the risks and limitations but ultimately the decision about how we behave is ours and our board did endorse this knowing that there were risks in what we were about to do.” Jim Conway of the Dana-Farber Cancer Institute says: “People believe that you tell a patient about error and they make two phone calls. One is to the press, the other to their lawyer. It does not work that way.”
As we wait for further empirical evidence, such testimony surely provides some reassurance that the open, honest, and timely disclosure of medical error to patients is indeed the right thing to do and should be the only approach to medical error. If we look back at the New Zealand cervical screening case, the comment by “patient A” certainly suggests that a more open response to the discovery of her under-reported smears in 1999 and an early investigation into whether there were other cases would have allowed her and the retired doctor to move on with their lives much earlier; it would also have taken the sting out of the publicity and avoided many of the headlines which have chronicled the difficult legal battles, the inquiry, and continuing fallout from the case. Of course the error would have made the news, but it would not have continued to make headlines for 4 years. It is more difficult to think up sensational headlines when the underlying story is essentially “Error discovered: inquiry launched immediately” rather than “ No action despite six looks at doctor” or “Warnings went on for years” and “Review confirms what battling patient knew”—headlines which appeared 4 years after patient A discovered her misread cervical smears.20
Open, honest, and timely disclosure should be the only approach to medical error
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