Disclosing medical errors

Question: A 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.

Question: A 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.

Question: A 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.