Does full disclosure of medical errors affect malpractice liability? The jury is still out

Do Written Disclosures of Serious Events Increase Risk of Malpractice Claims? One Health Care System's Experience

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Objective

This study aimed to determine whether Pennsylvania ACT 13 of 2002 (Mcare) requiring the written and verbal disclosure of “serious events” was accompanied by increased malpractice claims or compensation costs in a large U.S. health system.

Main Outcomes and Measures

The primary outcome was the rate of malpractice claims. The secondary outcome was the amount paid for compensation of malpractice claims. The analyses tested the relationship between the rate of serious event disclosures and the outcome variables, adjusted for the year of the event, category of claim, and the degree of “harm” related to the event.

Results

There were 15,028 serious event disclosures and 1302 total malpractice claims among 1,587,842 patients admitted to UPMC hospitals from May 17, 2002, to June 30, 2011. As the number of serious event disclosures increased, the number of malpractice claims per 1000 admissions remained between 0.62 and 1.03. Based on a matched analysis of claims that were disclosed and those that were not (195 pairs), disclosure status was significantly associated with increased claim payout (disclosures had 2.71 times the payout; 95% confidence interval, 1.56–4.72). Claims with higher harm levels H and I were independently associated with higher payouts than claims with lower harm levels A to D (11.15 times the payout; 95% confidence interval, 2.30–54.07).

Conclusions and Relevance

Implementation of a mandated serious event disclosure law in Pennsylvania was not associated with an overall increase in malpractice claims filed. Among events of similar degree of harm, disclosed events had higher compensation paid compared with those that had not been disclosed.

Mandatory State-Based Error-Reporting Systems: Current and Future Prospects

The magnitude of medical errors documented in the 1999 Institute of Medicine report "To Err Is Human" encouraged health care leaders across the country to evaluate and improve current systems of care. To aid in this effort, the authors recommended and provided guidelines for establishing state-based mandatory error-reporting systems. This repository for medical errors would allow experts to categorize, trend, and analyze data, generating institutional responsibility and increasing knowledge about medical mistakes. To be effective, these systems must employ efficient data collection methods, techniques for analysis, and feedback mechanisms. They must also engage institutional leaders in fostering a culture of safety and encourage multidisciplinary collaboration to learn from mistakes and improve microsystem-level processes. A review of current systems reveals extreme variation across states in each of these areas. However, initial successes do exist, suggesting the true potential of these systems and the need for continued evaluation as systems progress in future efforts.

Is the false-positive rate in mammography in North America too high?

The practice of investigating pathological abnormalities in the breasts of females who are asymptomatic is primarily employed using X-ray mammography. The importance of breast screening is reflected in the mortality-based benefits observed among females who are found to possess invasive breast carcinoma prior to the manifestation of clinical symptoms. It is estimated that population-based screening constitutes a 17% reduction in the breast cancer mortality rate among females affected by invasive breast carcinoma. In spite of the significant utility that screening confers in those affected by invasive cancer, limitations associated with screening manifest as potential harms affecting individuals who are free of invasive disease. Disease-free and benign tumour-bearing individuals who are subjected to diagnostic work-up following a screening examination constitute a population of cases referred to as false positives (FPs). This article discusses factors contributing to the FP rate in mammography and extends the discussion to an assessment of the consequences associated with FP reporting. We conclude that the mammography FP rate in North America is in excess based upon the observation of overtreatment of in situ lesions and the disproportionate distribution of detriment and benefit among the population of individuals recalled for diagnostic work-up subsequent to screening. To address the excessive incidence of FPs in mammography, we investigate solutions that may be employed to remediate the current status of the FP rate. Subsequently, it can be suggested that improvements in the breast-screening protocol, medical litigation risk, image interpretation software and the implementation of image acquisition modalities that overcome superimposition effects are promising solutions.

International recommendations for national patient safety incident reporting systems: an expert Delphi consensus-building process

BACKGROUND

Patient safety incident reporting systems (PSRS) have been established for over a decade, but uncertainty remains regarding the role that they can and ought to play in quantifying healthcare-related harm and improving care.

OBJECTIVE

To establish international, expert consensus on the purpose of PSRS regarding monitoring and learning from incidents and developing recommendations for their future role.

METHODS

After a scoping review of the literature, semi-structured interviews with experts in PSRS were conducted. Based on these findings, a survey-based questionnaire was developed and subsequently completed by a larger expert panel. Using a Delphi approach, consensus was reached regarding the ideal role of PSRSs. Recommendations for best practice were devised.

RESULTS

Forty recommendations emerged from the Delphi procedure on the role and use of PSRS. Experts agreed reporting system should not be used as an epidemiological tool to monitor the rate of harm over time or to appraise the relative safety of hospitals. They agreed reporting is a valuable mechanism for identifying organisational safety needs. The benefit of a national system was clear with respect to medication error, device failures, hospital-acquired infections and never events as these problems often require solutions at a national level. Experts recommended training for senior healthcare professionals in incident investigation. Consensus recommendation was for hospitals to take responsibility for creating safety solutions locally that could be shared nationally.

CONCLUSIONS

We obtained reasonable consensus among experts on aims and specifications of PSRS. This information can be used to reflect on existing and future PSRS, and their role within the wider patient safety landscape. The role of PSRS as instruments for learning needs to be elaborated and developed further internationally.

Disclosure of adverse events and errors in surgical care: challenges and strategies for improvement

The disclosure of adverse events to patients, including those caused by medical errors, is a critical part of patient-centered healthcare and a fundamental component of patient safety and quality improvement. Disclosure benefits patients, providers, and healthcare institutions. However, the act of disclosure can be difficult for physicians. Surgeons struggle with disclosure in unique ways compared with other specialties, and disclosure in the surgical setting has specific challenges. The frequency of surgical adverse events along with a dysfunctional tort system, the team structure of surgical staff, and obstacles created inadvertently by existing surgical patient safety initiatives may contribute to an environment not conducive to disclosure. Fortunately, there are multiple strategies to address these barriers. Participation in communication and resolution programs, integration of Just Culture principles, surgical team disclosure planning, refinement of informed consent and morbidity and mortality processes, surgery-specific professional standards, and understanding the complexities of disclosing other clinicians' errors all have the potential to help surgeons provide patients with complete, satisfactory disclosures. Improvement in the regularity and quality of disclosures after surgical adverse events and errors will be key as the field of patient safety continues to advance.

The flaws in state 'apology' and 'disclosure' laws dilute their intended impact on malpractice suits

Apologies are rare in the medical world, where health care providers fear that admissions of guilt or expressions of regret could be used by plaintiffs in malpractice lawsuits. Nevertheless, some states are moving toward giving health care providers legal protection so that they feel free to apologize to patients for a medical mistake. Advocates believe that these laws are beneficial for patients and providers. However, our analysis of "apology" and "disclosure" laws in thirty-four states and the District of Columbia finds that most of the laws have major shortcomings. These may actually discourage comprehensive disclosures and apologies and weaken the laws' impact on malpractice suits. Many could be resolved by improved statutory design and communication of new legal requirements and protections.

Learning from errors in radiology: a comprehensive review

An important goal of error analysis is to create processes aimed at reducing or preventing the occurrence of errors and minimizing the degree of harm. The discovery of any errors presents an opportunity to study the types that occur and to examine their sources and develop measures to prevent them from recurring. The development of an effective system for detecting and appropriately managing errors is essential to substantially attenuate their consequences. At this stage, the error analysis process identifies contributing factors to enable the implementation of concrete steps to prevent such errors from occurring in the future. Active and comprehensive management of errors and adverse events requires ongoing surveillance processes. Educational programs, morbidity and mortality meetings, and a comprehensive and respected root cause analysis process are also essential components of this comprehensive approach. To reduce the incidence of errors, health care providers must identify their causes, devise solutions, and measure the success of improvement efforts. Moreover, accurate measurements of the incidence of error, based on clear and consistent definitions, are essential prerequisites for effective action.

Association between physician explanatory behaviors and substandard care in adjudicated cases in Japan

Background:

When a physician provides an insufficient explanation to a patient, such as regarding diagnosis, treatment, drug use, or prognosis, the physician is deemed to have delivered substandard care. It is likely that the standards applied to physicians’ explanations have changed as a result of the increased importance of patients’ rights of self-determination. However, little or no research on decisions in medical malpractice cases has been conducted with respect to this issue.

Methods:

Based on decisions made in 366 medical malpractice cases between 1979 and 2008 focused primarily on the physician’s duty to explain relevant issues to patients, we examined the association between physicians’ explanatory behaviors and court decisions with respect to breaches of duty.

Results:

We found that physicians’ explanatory behaviors, including relevant and specific explanations provided before treatment or surgery, were important for fulfilling a physician’s duty to explain. The data also revealed that six of the 16 types of explanatory behaviors had improved during the past three decades. However, these improvements did not contribute to the fulfillment of the physician’s duty to explain.

Conclusion:

We found that there was an association between physicians’ explanatory behaviors and judicial decisions concerning substandard care, and courts were increasingly likely to consider inadequate explanatory behaviors to be a breach of the duty of care.

Disclosing medical errors to patients: it's not what you say, it's what they hear

BACKGROUND

There is consensus that patients should be told if they are injured by medical care. However, there is little information on how they react to different methods of disclosure.

OBJECTIVE

To determine if volunteers' reactions to videos of physicians disclosing adverse events are related to the physician apologizing and accepting responsibility.

DESIGN

Survey of viewers randomized to watch videos of disclosures of three adverse events (missed mammogram, chemotherapy overdose, delay in surgical therapy) with designed variations in extent of apology (full, non-specific, none) and acceptance of responsibility (full, none).

PARTICIPANTS

Adult volunteer sample from the general community in Baltimore.

MEASUREMENTS

Viewer evaluations of physicians in the videos using standardized scales.

RESULTS

Of 200 volunteers, 50% were <40 years, 25% were female, 80% were African American, and 50% had completed high school. For designed variations, scores were non-significantly higher for full apology/responsibility, and lower for no apology/no responsibility. Perceived apology or responsibility was related to significantly higher ratings (chi-square, 81% vs. 38% trusted; 56% vs. 27% would refer, p < 0.05), but inclination to sue was unchanged (43% vs. 47%). In logistic regression analyses adjusting for age, gender, race and education, perceived apology and perceived responsibility were independently related to higher ratings for all measures. Inclination to sue was reduced non-significantly.

CONCLUSIONS

Patients will probably respond more favorably to physicians who apologize and accept responsibility for medical errors than those who do not apologize or give ambiguous responses. Patient perceptions of what is said may be more important than what is actually said. Desire to sue may not be affected despite a full apology and acceptance of responsibility.

Disclosing harmful mammography errors to patients

PURPOSE

To assess radiologists' attitudes about disclosing errors to patients by using a survey with a vignette involving an error interpreting a patient's mammogram, leading to a delayed cancer diagnosis.

MATERIALS AND METHODS

We conducted an institutional review board-approved survey of 364 radiologists at seven geographically distinct Breast Cancer Surveillance Consortium sites that interpreted mammograms from 2005 to 2006. Radiologists received a vignette in which comparison screening mammograms were placed in the wrong order, leading a radiologist to conclude calcifications were decreasing in number when they were actually increasing, delaying a cancer diagnosis. Radiologists were asked (a) how likely they would be to disclose this error, (b) what information they would share, and (c) their malpractice attitudes and experiences.

RESULTS

Two hundred forty-three (67%) of 364 radiologists responded to the disclosure vignette questions. Radiologists' responses to whether they would disclose the error included "definitely not" (9%), "only if asked by the patient" (51%), "probably" (26%), and "definitely" (14%). Regarding information they would disclose, 24% would "not say anything further to the patient," 31% would tell the patient that "the calcifications are larger and are now suspicious for cancer," 30% would state "the calcifications may have increased on your last mammogram, but their appearance was not as worrisome as it is now," and 15% would tell the patient "an error occurred during the interpretation of your last mammogram, and the calcifications had actually increased in number, not decreased." Radiologists' malpractice experiences were not consistently associated with their disclosure responses.

CONCLUSION

Many radiologists report reluctance to disclose a hypothetical mammography error that delayed a cancer diagnosis. Strategies should be developed to increase radiologists' comfort communicating with patients.

Improving quality and safety of hospital care: a reappraisal and an agenda for clinically relevant reform

Improving quality and safety of hospital care is now firmly on the health-care agenda. Various agencies within different levels of government are pursuing initiatives targeting hospitals and health professionals that aim to identify, quantify and lessen medical error and suboptimal care. Although not denying the value of such 'top-down' initiatives, more attention may be needed towards 'bottom-up' reform led by practising physicians. This article discusses factors integral to delivery of safe, high-quality care grouped under six themes: clinical workforce, teamwork, patient participation in care decisions, indications for health-care interventions, clinical governance and information systems. Following this discussion, a 20-point action plan is proposed as an agenda for future reform capable of being led by physicians, together with some cautionary notes about relying too heavily on information technology, use of non-clinical quality personnel and quantitative evaluative approaches as primary strategies in improving quality.

Disclosing medical errors to patients: attitudes and practices of physicians and trainees

BACKGROUND

Disclosing errors to patients is an important part of patient care, but the prevalence of disclosure, and factors affecting it, are poorly understood.

OBJECTIVE

To survey physicians and trainees about their practices and attitudes regarding error disclosure to patients.

DESIGN AND PARTICIPANTS

Survey of faculty physicians, resident physicians, and medical students in Midwest, Mid-Atlantic, and Northeast regions of the United States.

MEASUREMENTS

Actual error disclosure; hypothetical error disclosure; attitudes toward disclosure; demographic factors.

RESULTS

Responses were received from 538 participants (response rate = 77%). Almost all faculty and residents responded that they would disclose a hypothetical error resulting in minor (97%) or major (93%) harm to a patient. However, only 41% of faculty and residents had disclosed an actual minor error (resulting in prolonged treatment or discomfort), and only 5% had disclosed an actual major error (resulting in disability or death). Moreover, 19% acknowledged not disclosing an actual minor error and 4% acknowledged not disclosing an actual major error. Experience with malpractice litigation was not associated with less actual or hypothetical error disclosure. Faculty were more likely than residents and students to disclose a hypothetical error and less concerned about possible negative consequences of disclosure. Several attitudes were associated with greater likelihood of hypothetical disclosure, including the belief that disclosure is right even if it comes at a significant personal cost.

CONCLUSIONS

There appears to be a gap between physicians' attitudes and practices regarding error disclosure. Willingness to disclose errors was associated with higher training level and a variety of patient-centered attitudes, and it was not lessened by previous exposure to malpractice litigation.

Disclosure of medical error: is it worth the risk?

INTRODUCTION

The climate within the United States is rapidly changing with respect to patient and family knowledge of medical error and their expectations of the events that should occur after an error.

OBJECTIVE

This article examines the history and changing tide of medical error disclosure, reviews the limited but growing body of literature surrounding patient and physician attitudes toward disclosing and discussing medical error, makes suggestions on what and how to disclose to patients and families that an error has occurred, and finally, discusses the effect of error disclosure.

CONCLUSION

It seems that if disclosure of medical error is made with compassion, in a timely manner, and with good communication skills both during and after the disclosure process, patients and their families are at least no more likely to seek legal action and some lawsuits may actually be avoided.

Disclosure Of Medical Injury To Patients: An Improbable Risk Management Strategy

Pressure mounts on physicians and hospitals to disclose adverse outcomes of care to patients. Although such transparency diverges from traditional risk management strategy, recent commentary has suggested that disclosure will actually reduce providers' liability exposure. We tested this theory by modeling the litigation consequences of disclosure. We found that forecasts of reduced litigation volume or cost do not withstand close scrutiny. A policy question more pressing than whether moving toward routine disclosure will expand litigation is the question of how large such an expansion might be.

Disclosure of medical errors

The 1999 release of the Institute of Medicine's document To Err is Human was akin to removing the lid of Pandora's box. Not only were the magnitude and impact of medical errors now apparent to those working in the health care industry, but consumers or health care were alerted to the occurrence of medical events causing harm. One specific solution advocated was the disclosure to patients and their families of adverse events resulting from medical error. Knowledge of the historical perspective, ethical underpinnings, and medico-legal implications gives us a better appreciation of current recommendations for disclosing adverse events resulting from medical error to those affected.

An empirically derived taxonomy of factors affecting physicians' willingness to disclose medical errors

BACKGROUND

Physician disclosure of medical errors to institutions, patients, and colleagues is important for patient safety, patient care, and professional education. However, the variables that may facilitate or impede disclosure are diverse and lack conceptual organization.

OBJECTIVE

To develop an empirically derived, comprehensive taxonomy of factors that affects voluntary disclosure of errors by physicians.

DESIGN

A mixed-methods study using qualitative data collection (structured literature search and exploratory focus groups), quantitative data transformation (sorting and hierarchical cluster analysis), and validation procedures (confirmatory focus groups and expert review).

RESULTS

Full-text review of 316 articles identified 91 impeding or facilitating factors affecting physicians' willingness to disclose errors. Exploratory focus groups identified an additional 27 factors. Sorting and hierarchical cluster analysis organized factors into 8 domains. Confirmatory focus groups and expert review relocated 6 factors, removed 2 factors, and modified 4 domain names. The final taxonomy contained 4 domains of facilitating factors (responsibility to patient, responsibility to self, responsibility to profession, responsibility to community), and 4 domains of impeding factors (attitudinal barriers, uncertainties, helplessness, fears and anxieties).

CONCLUSIONS

A taxonomy of facilitating and impeding factors provides a conceptual framework for a complex field of variables that affects physicians' willingness to disclose errors to institutions, patients, and colleagues. This taxonomy can be used to guide the design of studies to measure the impact of different factors on disclosure, to assist in the design of error-reporting systems, and to inform educational interventions to promote the disclosure of errors to patients.

Facilitating and impeding factors for physicians' error disclosure: a structured literature review

BACKGROUND

It is important for physicians to disclose medical errors to institutions (for patient safety), to colleagues (for professional learning), and to patients (as part of direct patient care), but no comprehensive review of factors that may facilitate or impede disclosure has been undertaken.

METHODS

A MEDLINE search was conducted of English-language articles published from 1975-2004, with review of bibliographies. A total of 5,509 articles were reviewed by title, 881 articles were retrieved for full text review, and 475 articles satisfied the inclusion criteria. Article content was assessed by identifying factors that facilitate or impede disclosure and classifying each article's primary goal of disclosure.

RESULTS

Thirty-five factors believed to facilitate disclosure were identified (for example, accountability, honesty, restitution), as were 41 factors believed to impede it (for example, professional repercussions, legal liability, blame). The three most common goals of disclosure were to improve patient safety, enhance learning, and inform patients. Facilitating factors were more commonly cited when the goal of disclosure was to inform patients.

DISCUSSION

A wide range of factors are capable of facilitating or impeding the disclosure of medical errors. Innovations to enhance error disclosure should address both sides of the equation: impeding factors should be removed and facilitating factors should be promoted.

Disclosure of medical errors: what factors influence how patients respond?

BACKGROUND

Disclosure of medical errors is encouraged, but research on how patients respond to specific practices is limited.

OBJECTIVE

This study sought to determine whether full disclosure, an existing positive physician-patient relationship, an offer to waive associated costs, and the severity of the clinical outcome influenced patients' responses to medical errors.

PARTICIPANTS

Four hundred and seven health plan members participated in a randomized experiment in which they viewed video depictions of medical error and disclosure.

DESIGN

Subjects were randomly assigned to experimental condition. Conditions varied in type of medication error, level of disclosure, reference to a prior positive physician-patient relationship, an offer to waive costs, and clinical outcome.

MEASURES

Self-reported likelihood of changing physicians and of seeking legal advice; satisfaction, trust, and emotional response.

RESULTS

Nondisclosure increased the likelihood of changing physicians, and reduced satisfaction and trust in both error conditions. Nondisclosure increased the likelihood of seeking legal advice and was associated with a more negative emotional response in the missed allergy error condition, but did not have a statistically significant impact on seeking legal advice or emotional response in the monitoring error condition. Neither the existence of a positive relationship nor an offer to waive costs had a statistically significant impact.

CONCLUSIONS

This study provides evidence that full disclosure is likely to have a positive effect or no effect on how patients respond to medical errors. The clinical outcome also influences patients' responses. The impact of an existing positive physician-patient relationship, or of waiving costs associated with the error remains uncertain.

How surgeons disclose medical errors to patients: a study using standardized patients

BACKGROUND

Calls are increasing for physicians to disclose harmful medical errors to patients, but little is known about how physicians perform this challenging task. For surgeons, communication about errors is particularly important since surgical errors can have devastating consequences. Our objective was to explore how surgeons disclose medical errors using standardized patients.

METHODS

Thirty academic surgeons participated in the study. Each surgeon discussed 2 of 3 error scenarios (wrong-side lumpectomy, retained surgical sponge, and hyperkalemia-induced arrhythmia) with standardized patients, yielding a total of 60 encounters. Each encounter was scored by using a scale developed to rate 5 communication elements of effective error disclosure. Half of the encounters took place face-to-face; the remainder occurred by videoconference.

RESULTS

Surgeons were rated highest on their ability to explain the medical facts about the error (mean scores for the 3 scenarios ranged from 3.93 to 4.20; maximum possible score, 5). Surgeons used the word error or mistake in only 57% of disclosure conversations, took responsibility for the error in 65% of encounters, and offered a verbal apology in 47%. Surgeons acknowledged or validated patients' emotions in 55% of scenarios. Eight percent discussed how similar errors would be prevented, and 20% offered a second opinion or transfer of care to another surgeon.

CONCLUSIONS

The patient safety movement calls for disclosure of medical errors, but significant gaps exist between how surgeons disclose errors and patient preferences. Programs should be developed to teach surgeons how to communicate more effectively with patients about errors.

Ethical Issues in Patient Safety

Making progress in patient safety poses many challenges, practical and theoretical, to the way physicians practice medicine. The ethical challenges are among the most profound. They include the ethical imperative to do all things practical to prevent errors and injury to patients, the need to respond appropriately when things go wrong to find new methods to prevent recurrence, the requirement for honesty and openness in dealing with our patients when things go wrong, and taking responsibility for ensuring that all of our colleagues are safe and competent. This is an immense challenge. It is not easy to "first, do no harm." But only we as a profession can meet this challenge. No one else can do it; we must.

Relationship between tort claims and patient incident reports in the Veterans Health Administration

OBJECTIVE

The Veterans Health Administration's patient incident reporting system was established to obtain comprehensive data on adverse events that affect patients and to act as a harbinger for risk management. It maintains a dataset of tort claims that are made against Veterans Administration's employees acting within the scope of employment. In an effort to understand the thoroughness of reporting, we examined the relationship between tort claims and patient incident reports (PIRs).

METHODS

Using social security and record numbers, we matched 8260 tort claims and 32 207 PIRs from fiscal years 1993-2000. Tort claims and PIRs were considered to be related if the recorded dates of incident were within 1 month of each other. Descriptive statistics, odds ratios, and two sample t tests with unequal variances were used to determine the relationship between PIRs and tort claims.

RESULTS

4.15% of claims had a related PIR. Claim payment (either settlement or judgment for plaintiff) was more likely when associated with a PIR (OR 3.62; 95% CI 2.87 to 4.60). Payment was most likely for medication errors (OR 8.37; 95% CI 2.05 to 73.25) and least likely for suicides (OR 0.25; 95% CI 0.11 to 0.55).

CONCLUSIONS

Although few tort claims had a related PIR, if a PIR was present the tort claim was more likely to result in a payment; moreover, the payment was likely to be higher. Underreporting of patient incidents that developed into tort claims was evident. Our findings suggest that, in the Veterans Health Administration, there is a higher propensity to both report and settle PIRs with bad outcomes.

The gap between nurses and residents in a community hospital's error-reporting system

BACKGROUND

Little is known about current attitudes and practices among residents and nurses regarding error reporting. A survey was conducted to suggest differing needs for training and other interventions to enhance reporting.

METHODS

The authors surveyed 24 residents and 60 nursing staff in all inpatient care units at a community hospital from 2001 to 2002. The authors used self-administered questionnaires to assess respondents' knowledge and use of the hospital's error-reporting system, perceptions and attitudes toward error reporting, reported behaviors in hypothetical error scenarios, and conditions that influence error reporting.

RESULTS

Only half of the residents (54%) knew about the hospital's error-reporting system, whereas nearly all nurses did (97%; p = .001). Only 13% of the residents (versus 72% of the nurses) had ever used the reporting system (p = .001). Residents (29%) were less likely than nurses (64%) to report being comfortable discussing mistakes with supervisors (p = .006), and residents (38%) were more likely than nurses (0%) to rate the hospital atmosphere as nonsupportive of error reporting (p = 001).

DISCUSSION

Error-reporting systems may give a biased picture of the true pattern of medical errors, and hospitals may need to initiate other interventions to improve residents' error reporting.

Liability reform should make patients safer: "avoidable classes of events" are a key improvement

Too many patients are injured in the course of medical care. This truth is as distressing now as it was four years ago when it began an article in this journal’s last similar symposium. Many or most injuries seem preventable. Yet today’s systems of care and of oversight of care too often fail to prevent them, despite generations of increasing legal intervention. Few injuries are litigated, even fewer addressed through medical peer review or state disciplinary authorities. The Institute of Medicine’s (IOM’s) landmark reportTo Err Is Humanbrought patient safety to national attention when released in late 1999. Half a decade later, significant reduction of injury remains a distant prospect, despite some apparent progress.

Unanticipated Harm to Patients: Deciding When to Disclose Outcomes

BACKGROUND

Patient safety standards of the Joint Commission on Accreditation of Healthcare Organizations require that "patients and, when appropriate, their families are informed about the outcomes of care, including unanticipated outcomes."

WHAT OUTCOMES SHOULD TRIGGER DISCLOSURE

Given that all medical treatments have an array of possible outcomes, how do we confidently say that an outcome is unanticipated? It is proposed that an adverse outcome meet one of two criteria to be considered unanticipated: (1) It would not be included in a reasonable informed consent process for treatment of the patient's condition(s) and/or would not be expected during the usual course of treatment; and (2) it may have been caused by human or systemic error--that is, it is not immediately possible to clearly and decisively rule out error. This definition requires less judgment because it represents an extension of the existing norms of communication that are expressed through the process of informed consent. The norms of the informed consent process require that the patient be given all pertinent information needed to participate in future treatment decision making.

CONCLUSIONS AND RECOMMENDATIONS FOR ORGANIZATIONAL POLICIES

Institutional policies and procedures should provide a clear approach to the identification, reporting, and discussion of unanticipated adverse outcomes, whether or not they are associated with error, as well as guidance and an educational program to help physicians, staff, and students disclose unanticipated adverse events and error in the most appropriate manner.