Disclosure Of Medical Errors Is Honesty The Best Policy Legally?
by Ken Braxton and Kip Poe, Stewart Stimmel LLP, Dallas, TX
A majority of states have adopted or are considering apology laws that exempt expressions of regret, sympathy or compassion from being considered as admissions of liability in medical malpractice lawsuits. The intent is to encourage physicians and other healthcare providers to apologize to patients when a medical error, accident or unanticipated outcome occurs without the apology being taken as an admission of guilt. The consensus is that healthcare providers have become reluctant to explain to patients and their families what happened when procedures go wrong because they fear the information will be used against them in court. Many healthcare providers have struggled with their desire to explain and apologize to their patient, but have often been strongly advised against such open discussions by their defense attorneys. Is the reluctance justified or is honesty really the best policy?
In our experience as medical negligence defense attorneys, we have found that failing to disclose medical errors or failing to explain unanticipated outcomes to patients often creates frustration and anger and may lead patients or their families to file lawsuits to “get to the bottom of the matter”. A perceived “cover-up” is a certain invitation to being sued. We have seen many instances of patients suing over their anger of feeling like they weren't being given the facts by their doctor, and then not being angry over the mistake when it was finally explained to them. Unfortunately, once the lawsuit is filed and an attorney is involved, the lawsuit rarely resolves just because the anger dissipates. As a result, we agree that honesty and an open dialogue with a patient is the best policy; however, it is imperative that healthcare providers be fully informed and knowledgeable regarding how to appropriately provide “apologies” to patients and their families. For healthcare providers in training, this requires that they are taught how to discuss medical errors with their patients the same way they are taught to obtain a medical history from the patient. For practicing providers, their insurance carriers, risk managers, and healthcare lawyers must educate the providers during risk management lectures and discussions. JCAHO, the accreditation organization for hospitals, is placing more emphasis on institutional policies regarding sentinel events or unanticipated outcomes and how institutions are to deal with these outcomes. For healthcare lawyers advising hospitals, a possible approach to protecting the confidentiality of medical apologies is to incorporate these discussions into JCAHO imposed guidelines and peer review protocols within the institution. By doing so, the institution avails itself of any medical peer review privileges provided by state laws.
While most states have joined in the trend to protect medical apologies, several state laws continue to allow statements concerning culpable conduct or admissions of fault to be admitted as evidence of liability. Healthcare providers should work with their employer or professional liability insurer’s risk management or legal staff to fully understand the applicable state law regarding “I am Sorry” guidelines, just as they are educated on state laws regarding patient consent issues. As the law is constantly evolving in each state, firms should keep track of individual state’s “I am sorry” laws in which they have healthcare clients.
Most insurers are receptive to their providers participating in these discussions and apologies when properly conducted. An excellent source of information for healthcare providers, attorneys, risk managers, and insurance carriers is The Sorry Works! Coalition, which is a national group advocating a formal apology program for medical errors as a proactive solution to the medical malpractice crisis and proposals for tort reform. The group has gained Congressional allies in Senators Hillary Rodham Clinton and Barack Obama (Democratic senators from New York and Illinois, respectively) who have introduced federal legislation regarding the communication and apology of medical errors. Several large healthcare centers and professional negligence carriers are advocates of these principles, and have incorporated the “Sorry Works” approach into their risk management educational programs. Two of the major healthcare entities to incorporate this approach, after extensive studies, are the University of Michigan Hospital System and the Veteran’s Affairs Administration.
The bottom line is that open communication with patients throughout their care has a dramatic effect on making a patient “feel” like they are in control and are a part of the healthcare team. When a mistake is made, an open discussion of the error, within the guidelines of state and federal law, has been shown to decrease the likelihood of the patient filing a lawsuit, and can decrease the costs of defending a meritorious claim by taking anger out of the equation. Since every state has different requirements to protect these discussions, healthcare attorneys need to become acquainted with the specific language in the statutes of their state.
Mr. Braxton is a partner in the Stewart Stimmel LLP law firm and has over sixteen years experience in defending healthcare providers. He previously taught at the Texas Tech law school, medical school, and nursing school on healthcare matters and continues to be a frequently invited lecturer on these issues. Ms. Poe is a registered nurse with a background in trauma care and former professor at the Texas Tech medical and nursing schools. She has been defending as well as educating healthcare providers for fifteen years.