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Legal experts now recommend a "full disclosure" approach to talking with patients about unintended outcomes. Some even contend it lowers your risk for lawsuits. Here's how to do it right.
What's the first thing you should do if a medical error harms a patient in your practice? No, it isn't calling your attorney.
Instead, risk management experts say you should tend to your patient's needs while relying on your incident recovery plan to get you safely through the incident's aftermath.
Don't have an incident recovery plan? Join the club. Risk management consultant Sarah Freyman Fontenot says many medical practices don't put enough thought into handling post-incident situations until they occur. They risk angering patients enough to cause them to lodge malpractice lawsuits, even when the bad outcome was not caused by a medical mistake.
"The overwhelming evidence from studies going back a decade or more shows that full disclosure and talking to the patient and the family - being frank and prompt - all greatly reduce the incidence of claims against physicians," says Fontenot, a Houston-based nurse and attorney who teaches health law to physicians, nurses, and other health professionals.
What evidence? A 1994 study by Howard Beckman, MD, and colleagues, for example, found that breakdowns in the physician-patient relationship - frequently miscommunication - were at the root of nearly three out of four malpractice legal actions filed against physicians. Beckman's study is one of dozens in the growing body of research into why some patients with bad outcomes sue their physicians for malpractice but others don't. In most cases, the physician's bedside manner seems to be the major contributing factor in soothing the anger of patients and their families.
Adds Fontenot, "That doesn't mean physicians should run around giving mea culpa's every time anything goes wrong. It's very possible that they provided state-of-the-art medicine and the patient just didn't get the result expected."
So, what should you do when things don't turn out as expected? Instead of clamming up or, perhaps just as hazardous, trying to improvise a response, you should develop an incident recovery plan and follow it. The plan should include making a full disclosure to the patient, debriefing staff and other physicians, documenting the incident, looking for process improvements, and making any required notifications.
Telling patients and their families about a medical error - or an "unanticipated adverse outcome" as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) calls it - is how organizations meet their ethical and fiduciary responsibilities, says Sandy Reifsteck, a nurse and regional consultant for the Institute for Health Care Communication in Champaign, Ill.
These errors can be caused by:
JCAHO standards go beyond reporting medical errors. The organization now calls for its accredited institutions to have full-disclosure policies in place and put them into action whenever there is an unexpected outcome, not just when an error occurs.
Full disclosure to patients represents a distinct departure from the medical community's traditional approach to handling errors. Although full disclosure to a patient - and even apologizing if an error has occurred - may seem counterintuitive in today's litigation-frenzied world, that's what many attorneys, consultants, and physicians' malpractice insurance companies are advising doctors to do.
"We're trying to correct a culture that for 40 or 50 years has told physicians to duck and cover when there's a problem and it's something that we won't turn around overnight," says Doug Wojcieszak, spokesperson for The Sorry Works! Coalition, an Illinois nonprofit that advocates for laws giving legal protection to physicians who voluntarily disclose errors to patients.
According to Wojcieszak and other experts, a recommended scenario after an error or bad outcome includes:
Yup, You Should Apologize
It's one thing to express empathy for a patient whose course of treatment did not go as planned, or whose surgery was unsuccessful, when you were not at fault. It's quite another to accept responsibility and apologize when the patient was damaged due to your genuine negligence - an apology may seem in order, but doesn't that put you on tenuous footing should the patient sue?
In fact, it does. But experts say you should do it anyway, because the patient is likely to find out what happened through a medical records review, regardless of what you tell him, and straightforwardness could go a long way toward preventing him from calling a lawyer to begin with.
Moreover, a growing group of states - 16 so far - have acted to provide a level of liability protection to physicians who communicate promptly and honestly about errors.
Not everyone, though, agrees that openly accepting responsibility is wise, even when you believe you're at fault.
"We advocate what we call a blameless apology," says Pam Hutcherson, a nurse and risk management specialist for Tennessee-based State Volunteer Mutual Insurance Company (SVMIC). "You express sympathy for the situation but do not immediately acknowledge blame until the facts are in."
Isn't there the danger that full disclosure will void your malpractice insurance policy? Not necessarily.
"Our company's policy says you agree to assist in your defense and communicate with us promptly about incidents, but it's never inappropriate to say, 'I'm sorry the surgery or treatment didn't go as we planned,'" says Hutcherson.
Disclosure Lowers Risk
Does a formal program of full disclosure - and apology when an error has occurred - actually lower liability risk in the real world? It does at the University of Michigan Hospital System in Ann Arbor, where chief risk officer Rick Boothman says a full-disclosure program has cut the number of pending lawsuits in half. The program has reduced defense litigation costs from an average of $65,000 per case to $35,000 per case, resulting in annual savings of nearly $2 million in legal costs.
That's not to say patients who are injured won't expect settlements, but you may be able to avoid the agony of a lengthy legal action.
Full disclosure is often recommended, but it does not have to be accompanied by an admission of error. Nor is it something to jump into without some advance planning. "You don't want doctors running out and disclosing things [without knowing] how to disclose it," says Reifsteck.
Wojcieszak agrees, "If there was a bad outcome but no medical error, then we're not suggesting doctors apologize and hand out money for every bad outcome." All the same, he says, meeting with patients and their families and opening the medical record is the key to good patient relations.
Hutcherson says any formal meeting between a physician and patient to discuss an error or bad outcome should be done with the knowledge of the organization's chief medical officer (CMO). "Anytime you pull a physician out of production into a conference like this, you certainly want management and the CMO to know what's going on," she says.
Practices are Different
So, if many large institutions have successfully implemented full-disclosure programs, does that mean such a program is right for your practice? Not necessarily. In a hospital, a surgical error might be immediately apparent. But the errors or bad outcomes that occur in ambulatory care might not be detected for days, weeks, or even months.
Say a patient calls your practice complaining of pain and nausea. Your triage nurse incorrectly assumes it is the flu but a few days later you learn that the patient had emergency surgery to have his appendix removed.
"He'll remember that he called you and nothing was done to help him right away, and he got sicker," says Debbie Wills, SVMIC's vice president of risk management.
Most small organizations fail to prepare to handle the aftermath of medical incidents, says Wills. And they often have no tracking mechanism to provide early detection, if not prevention, of errors. Automated lab test tracking systems and electronic health records are among the technical solutions that may help reduce medical errors or omissions.
What should your practice do in the fumbled triage example? For starters, debriefing your staff can give you a better view of the processes that may have led to the error.
"When something happens, you have to very quickly pull together the people who were involved and set up debriefings and start documenting what happened, just like they do in the hospital setting," Hutcherson says.
Perhaps the triage nurse relied on a medical assistant's notes of the patient's phone call instead of speaking with the patient. Maybe she is frequently interrupted and asked to help room patients or handle other clinical tasks instead of focusing on incoming patient calls. Or maybe she needs more training. In any case, you won't really know if you don't investigate, says Hutcherson.
"You really need follow-through; ideally it is some sort of policy or procedure in the office where you have talked through the steps you'll go through after an incident - whom to debrief, what to document, who documents it, what you do with the documentation," she says. "That happens in hospitals but I just don't see that it exists very much in the medical practice office setting."
At Proliance Surgeons Inc., a large surgical practice in the Seattle area, even the smallest incident can prompt the practice's staff to create a "risk management folder," says CEO David G. Fitzgerald. He describes the folders as "watch files" that help track events and spot patterns of incidents. Something as simple as a patient getting into an angry verbal exchange with a physician could spark the creation of an incident folder, he says.
Fitzgerald says the 130-physician practice initiates between 50 and 70 folders annually. "We start these conversations often in a quality assurance committee setting because in Washington, we have legislation giving that kind of committee attorney-client privilege to what's discussed," he says.
Training is Critical
A 1997 study led by University of Chicago researcher Wendy Levinson suggested that how the doctor talks with the patient, not medical negligence, is the most important reason a patient with a bad outcome decides to sue her doctor.
Michael Woods, who teaches seminars for doctors and malpractice insurers and writes about the importance of apologizing, has described how not to talk to a patient. Woods, now practicing in Colorado, explains how in the early 1990s, his body language may have angered a patient enough to sue him.
A medical resident under Woods' supervision had accidentally punctured a patient's artery during an appendix removal, which led to additional surgery. Woods says that during a subsequent visit the patient got the impression Woods was too casual about the incident. As a busy surgeon who spent long hours on his feet, Woods had absent-mindedly propped his feet up on a desk to rest them while talking to the patient. That simple gesture may have spurred the patient to sue.
Reifsteck agrees that patient relations can echo consumer relations in many ways - appearances do count. "Just be aware that this is a consumer-driven world and know that it is watching you closely," she says.
Robert Redling, MS, is a writer with more than ten years' experience focusing on medical practice management. He can be reached via firstname.lastname@example.org.
This article originally appeared in the January 2006 issue of Physicians Practice.