Disclosure-and-resolution programs that include generous compensation offers may prompt a complex patient response

Risk Management-Obstetrics and Gynecology Perspective

The Obstetrics and Gynecology physician's likelihood to experience medical malpractice claims are higher than in other medical specialties. We will review the basic principles of health care risk management, the role of the risk manager, and the importance of health care risk management in risk mitigation for obstetrics and gynecology physicians. Attention is focused on medical record documentation, disclosure of adverse events, second victim programs, grievance management techniques, alternative dispute resolution concepts, regulatory inquiries including state licensure investigations, product failures, and electronic media strategies. Concluding, health care risk management may be used as a claim avoidance tool and provider protective vehicle for physicians.

Factors related to liability for damages for adverse events occurring in long-term care facilities

Globally, residents of long-term care facilities (LTCFs) often experience adverse events (AEs) and corresponding lawsuits that result in suffering among the residents, their families, and the facilities. Hence, we conducted a study to clarify the factors related to the facilities' liabilities for damages for the AEs that occur at LTCFs in Japan. We analyzed 1,495 AE reports from LTCFs in one Japanese city. A binomial logistic regression analysis was conducted to identify factors associated with liability for damages. The independent variables were classified as: residents, organizations, and social factors. In total, 14% of AEs resulted in the facility being liable for damages. The predictors of liability for damages were as follows: for the resident factors, the increased need for care had an adjusted odds ratio (AOR) of 2.00 and care levels of 2-3; and AOR of 2.48 and care levels of 4-5. The types of injuries, such as bruises, wounds, and fractures, had AORs of 3.16, 2.62, and 2.50, respectively. Regarding the organization factors, the AE time, such as noon or evening, had an AOR of 1.85. If the AE occurred indoors, the AOR was 2.78, and if it occurred during staff care, the AOR was 2.11. For any follow-ups requiring consultation with a doctor, the AOR was 4.70, and for hospitalization, the AOR was 1.76. Regarding the type of LTCF providing medical care in addition to residential care, the AOR was 4.39. Regarding the social factors, the reports filed before 2017 had an AOR of 0.58. The results of the organization factors suggest that liability tends to arise in situations where the residents and their family expect high quality care. Therefore, it is imperative to strengthen organizational factors in such situations to avoid AEs and the resulting liability for damages.

Patients at the centre after a health care incident: A scoping review of hospital strategies targeting communication and nonmaterial restoration

OBJECTIVE

This study aimed to provide an overview of the strategies adopted by hospitals that target effective communication and nonmaterial restoration (i.e., without a financial or material focus) after health care incidents, and to formulate elements in hospital strategies that patients consider essential by analysing how patients have evaluated these strategies.

BACKGROUND

In the aftermath of a health care incident, hospitals are tasked with responding to the patients' material and nonmaterial needs, mainly restoration and communication. Currently, an overview of these strategies is lacking. In particular, a gap exists concerning how patients evaluate these strategies.

SEARCH STRATEGY AND INCLUSION CRITERIA

To identify studies in this scoping review, and following the methodological framework set out by Arksey and O'Malley, seven subject-relevant electronic databases were used (PubMed, Medline, Embase, CINAHL, PsycARTICLES, PsycINFO and Psychology & Behavioral Sciences Collection). Reference lists of included studies were also checked for relevant studies. Studies were included if published in English, after 2000 and as peer-reviewed articles.

MAIN RESULTS AND SYNTHESIS

The search yielded 13,989 hits. The review has a final inclusion of 16 studies. The inclusion led to an analysis of five different hospital strategies: open disclosure processes, communication-and-resolution programmes, complaints procedures, patients-as-partners in learning from health care incidents and subsequent disclosure, and mediation. The analysis showed three main domains that patients considered essential: interpersonal communication, organisation around disclosure and support and desired outcomes.

PATIENT CONTRIBUTION

This scoping review specifically takes the patient perspective in its methodological design and analysis. Studies were included if they contained an evaluation by patients, and the included studies were analysed on the essential elements for patients.

The Impacts of Disclosure and a Proactive Compensation Offer on Chinese Patients' Actions After Medical Errors

OBJECTIVES

This study aims to obtain evidence of the impacts of error disclosure and the impacts of a proactive compensation offer on Chinese patients' actions after medical errors.

METHODS

A total of 915 responses were collected from a questionnaire survey. Two fictitious cases (entailed moderate and severe harm) that involved error disclosure were described. One of 5 disclosure and compensation types was randomly provided to each participant. The 5 types were combinations of 3 disclosure types (no disclosure, partial disclosure, and full disclosure) and 2 proactive compensation offer categories (no offer and an offer), with the exception of no disclosure but a proactive compensation offer. The respondents were asked about their willingness to take actions if they were the affected patient.

RESULTS

The generalized ordinal logit regression model showed that error disclosure did not increase the likelihood of the patients taking action, such as changing physicians, complaining, or filing lawsuits. A proactive compensation offer decreased the patients' willingness to file lawsuits but had no significant influence on the other action choices. In addition, the patients' actions were affected by other factors, such as the severity of the error, age, sex, education level, being religious, prior error experience, and health insurance.

CONCLUSIONS

We suggest that "disclosure and compensation" programs are developed in China. To ensure their implementation, it is recommended that appropriate training is provided and that the disclosure culture in health care organizations is improved. Furthermore, laws or regulations are required that govern error disclosure and provide support for health care professionals and organizations.

Why an Open Disclosure Procedure Is and Is not Followed After an Avoidable Adverse Event

OBJECTIVE

The aim of the study was to analyze the relationships between factors that contribute to healthcare professionals informing and apologizing to a patient after an avoidable adverse event (AAE).

METHODS

A secondary study based on the analysis of data collected in a cross-sectional study conducted in 2014 in Spain was performed. Health professionals from hospitals and primary care completed an online survey.

RESULTS

The responses from 1087 front-line healthcare professionals were analyzed. The willingness of the professionals to fully disclose an AAE was greater among those who were backed by their institution (odds ratio [OR] = 72.6, 95% confidence interval [CI] = 37.5-140.3) and who had experience with that type of communication (OR = 2.4, 95% CI = 1.3-4.5). An apology for the patient was more likely when there was institutional support (OR = 31.3, 95% CI = 14.4-68.2), the professional was not aware of lawsuits (OR = 2.7, 95% CI = 1.2-6.1), and attributed most AAE to human error (OR = 2.2, 95% CI = 1.1-4.2). The fear of lawsuits was determined by the lack of support from the center in disclosing AAE (OR = 5.5, 95% CI = 2.8-10.6) and the belief that being open would result in negative consequences (OR = 2.0, 95% CI = 1.1-3.6).

CONCLUSIONS

The culture of safety, the experience of blame, and the expectations about the outcome from communicating an AAE to patients affect the frequency of open disclosure. Nurses are more willing than physicians to participate in open disclosure. Health care organizations must act to establish a framework of legal certainty for professionals.

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.

Generalizability of heterogeneous treatment effect estimates across samples

The extent to which survey experiments conducted with nonrepresentative convenience samples are generalizable to target populations depends critically on the degree of treatment effect heterogeneity. Recent inquiries have found a strong correspondence between sample average treatment effects estimated in nationally representative experiments and in replication studies conducted with convenience samples. We consider here two possible explanations: low levels of effect heterogeneity or high levels of effect heterogeneity that are unrelated to selection into the convenience sample. We analyze subgroup conditional average treatment effects using 27 original-replication study pairs (encompassing 101,745 individual survey responses) to assess the extent to which subgroup effect estimates generalize. While there are exceptions, the overwhelming pattern that emerges is one of treatment effect homogeneity, providing a partial explanation for strong correspondence across both unconditional and conditional average treatment effect estimates.

Lessons learned for reducing the negative impact of adverse events on patients, health professionals and healthcare organizations

Purpose

To summarize the knowledge about the aftermath of adverse events (AEs) and develop a recommendation set to reduce their negative impact in patients, health professionals and organizations in contexts where there is no previous experiences and apology laws are not present.

Data sources

Review studies published between 2000 and 2015, institutional websites and experts' opinions on patient safety.

Study selection

Studies published and websites on open disclosure, and the second and third victims' phenomenon. Four Focus Groups participating 27 healthcare professionals.

Data extraction

Study characteristic and outcome data were abstracted by two authors and reviewed by the research team.

Results of data synthesis

Fourteen publications and 16 websites were reviewed. The recommendations were structured around eight areas: (i) safety and organizational policies, (ii) patient care, (iii) proactive approach to preventing reoccurrence, (iv) supporting the clinician and healthcare team, (v) activation of resources to provide an appropriate response, (vi) informing patients and/or family members, (vii) incidents' analysis and (viii) protecting the reputation of health professionals and the organization.

Conclusion

Recommendations preventing aftermath of AEs have been identified. These have been designed for the hospital and the primary care settings; to cope with patient's emotions and for tacking the impact of AE in the second victim's colleagues. Its systematic use should help for the establishment of organizational action plans after an AE.

Disclosing Adverse Events to Patients: International Norms and Trends

OBJECTIVES

There is a growing expectation in health systems around the world that patients will be fully informed when adverse events occur. However, current disclosure practices often fall short of this expectation.

METHODS

We reviewed trends in policy and practice in 5 countries with extensive experience with adverse event disclosure: the United States, the United Kingdom, Canada, New Zealand, and Australia.

RESULTS

We identified 5 themes that reflect key challenges to disclosure: (1) the challenge of putting policy into large-scale practice, (2) the conflict between patient safety theory and patient expectations, (3) the conflict between legal privilege for quality improvement and open disclosure, (4) the challenge of aligning open disclosure with liability compensation, and (5) the challenge of measurement related to disclosure.

CONCLUSIONS

Potential solutions include health worker education coupled with incentives to embed policy into practice, better communication about approaches beyond the punitive, legislation that allows both disclosure to patients and quality improvement protection for institutions, apology protection for providers, comprehensive disclosure programs that include patient compensation, delinking of patient compensation from regulatory scrutiny of disclosing physicians, legal and contractual requirements for disclosure, and better measurement of its occurrence and quality. A longer-term solution involves educating the public and health care workers about patient safety.

Eliciting the Functional Processes of Apologizing for Errors in Health Care: Developing an Explanatory Model of Apology

The purpose of this article was to analyze the concept development of apology in the context of errors in health care, the administrative response, policy and format/process of the subsequent apology. Using pragmatic utility and a systematic review of the literature, 29 articles and one book provided attributes involved in apologizing. Analytic questions were developed to guide the data synthesis and types of apologies used in different circumstances identified. The antecedents of apologizing, and the attributes and outcomes were identified. A model was constructed illustrating the components of a complete apology, other types of apologies, and ramifications/outcomes of each. Clinical implications of developing formal policies for correcting medical errors through apologies are recommended. Defining the essential elements of apology is the first step in establishing a just culture in health care. Respect for patient-centered care reduces the retaliate consequences following an error, and may even restore the physician patient relationship.

Eleven-year descriptive analysis of closed court verdicts on medical errors in Spain and Massachusetts

OBJECTIVES

To evaluate and compare the characteristics of court verdicts on medical errors allegedly harming patients in Spain and Massachusetts from 2002 to 2012.

DESIGN, SETTING AND PARTICIPANTS

We reviewed 1041 closed court verdicts obtained from data on litigation in the Thomson Reuters Aranzadi Westlaw databases in Spain (Europe), and 370 closed court verdicts obtained from the Controlled Risk and Risk Management Foundation of Harvard Medical Institutions (CRICO/RMF) in Massachusetts (USA). We included closed court verdicts on medical errors. The definition of medical errors was based on that of the Institute of Medicine (USA). We excluded any agreements between parties before a judgement.

RESULTS

Medical errors were involved in 25.9% of court verdicts in Spain and in 74% of those in Massachusetts. The most frequent cause of medical errors was a diagnosis-related problem (25.1%; 95% CI 20.7% to 31.1% in Spain; 35%; 95% CI 29.4% to 40.7% in Massachusetts). The proportion of medical errors classified as high severity was 34% higher in Spain than in Massachusetts (p=0.001). The most frequent factors contributing to medical errors in Spain were surgical and medical treatment (p=0.001). In Spain, 98.5% of medical errors resulted in compensation awards compared with only 6.9% in Massachusetts.

CONCLUSIONS

This study reveals wide differences in litigation rates and the award of indemnity payments in Spain and Massachusetts; however, common features of both locations are the high rates of diagnosis-related problems and the long time interval until resolution.

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.

Implementing hospital-based communication-and-resolution programs: lessons learned in New York City

In 2010 five New York City hospitals implemented a communication-and-resolution program (CRP) in general surgery. The program's goals were to improve reporting of serious adverse events to risk management, support clinical staff in discussing these events with patients, rapidly investigate why injuries occurred, communicate to patients what was discovered, and offer apologies and compensation when the standard of care was not met. We report the hospitals' experiences with implementing the CRP over a twenty-two-month period. We found that all five hospitals improved disclosure and surveillance of adverse events but were not able to fully implement the program's compensation component. These experiences suggest that strong support from top leadership at the hospital and insurer levels, and adequate staff resources, are critical for the success of CRPs. Hospitals considering adopting a CRP should ensure that their organizations can tolerate risk, their leaders are willing to reinforce CRP implementation, and resources are in place to educate clinical staff about how the program can benefit them.

The right to be informed and fear of disclosure: sustainability of a full error disclosure policy at an Italian cancer centre/clinic

Background

The aim of this study was to investigate the behaviour of physicians in cases of medical error as well as the nature of the information that should be given to the patient and to ascertain whether it is possible to institute a full error disclosure policy. Data was collected through the completion of anonymous questionnaires by medical directors of the IRCCS CROB (the Oncology Centre of Basilicata, Italy).

Methods

An anonymous questionnaire consisting of 15 questions was prepared and administered to all the physicians working at the IRCCS CROB – the Oncology Centre of Basilicata. The main aim of the research was to evaluate the feasibility of adopting a full disclosure policy and the extent to which such a policy could help reduce administration and legal costs.

Results

The physicians interviewed unanimously recognize the importance of error disclosure, given that they themselves would want to be informed if they were the patients. However, 50% have never disclosed a medical error to their patients. Fear of losing the patient’s trust (33%) and fear of lawsuits (31%) are the main obstacles to error disclosure.

Conclusions

The authors found that physicians were in favour of a full policy disclosure at the IRCCS CROB – the Oncology Centre of Basilicata. Many more studies need to be carried out in order to comprehend the economic impact of a full error disclosure policy.

Electronic supplementary material

The online version of this article (doi:10.1186/s12913-015-0794-3) contains supplementary material, which is available to authorized users.

An exploration of the implementation of open disclosure of adverse events in the UK: a scoping review and qualitative exploration

Background

In 2009 the UK National Patient Safety Agency relaunched its Being Open framework to facilitate the open disclosure of adverse events to patients in the NHS. The implementation of the framework has been, and remains, challenging in practice.

Aim

The aim of this work was to both critically evaluate and extend the current evidence base relating to open disclosure, with a view to supporting the implementation of a policy of open disclosure of adverse events in the NHS.

Methods

This work was conducted in three phases. The first phase comprised two focused systematic literature reviews, one summarising empirical research on the effectiveness of interventions to enhance open disclosure, and a second, broader scoping review, looking at reports of current opinion and practice and wider knowledge. The second phase involved primary qualitative research with the objective of generating new knowledge about UK-based stakeholders’ views on their role in and experiences of open disclosure. Stakeholder interviews were analysed using the framework approach. The third phase synthesised the findings from the first two phases to inform and develop a set of short pragmatic suggestions for NHS trust management, to facilitate the implementation and evaluation of open disclosure.

Results

A total of 610 papers met the inclusion criteria for the broad review. A large body of literature discussed open disclosure from a number of related, but sometimes conflicted, perspectives. Evidential gaps persist and current practice is based largely on expert consensus rather than evidence. There appears to be a tension between the existing pragmatic guidance and the more in-depth critiques of what being consistent and transparent in health care really means. Eleven papers met the inclusion criteria for the more focused review. There was little evidence for the effectiveness of disclosure alone on organisational or individual outcomes or of interventions to promote and support open disclosure. Interviews with stakeholders identified strong support for the basic principle of being honest with patients or relatives when someone was seriously harmed by health care. In practice however, the issues are complex and there is confusion about a number of issues relating to disclosure policies in the UK. The interviews generated insights into the difficulties perceived within health care at individual and institutional levels, in relation to fully implementing the Being Open guidance.

Conclusions

There are several clear strategies that the NHS could learn from to implement and sustain a policy of openness. Literature reviews and stakeholder accounts both identified the potential benefits of a culture that was generally more open (not just retrospectively open about serious harm). Future work could usefully evaluate the impact of disclosure on legal challenges within the NHS, best practice in models of support and training for open disclosure, embedding disclosure conversations in critical incident analysis and disclosure of less serious events.

Funding

The National Institute for Health Research Health Services and Delivery Research programme.

The health reform monitoring survey: addressing data gaps to provide timely insights into the affordable care act

The Health Reform Monitoring Survey (HRMS) was launched in 2013 as a mechanism to obtain timely information on the Affordable Care Act (ACA) during the period before federal government survey data for 2013 and 2014 will be available. Based on a nationally representative, probability-based Internet panel, the HRMS provides quarterly data for approximately 7,400 nonelderly adults and 2,400 children on insurance coverage, access to health care, and health care affordability, along with special topics of relevance to current policy and program issues in each quarter. For example, HRMS data from summer 2013 show that more than 60 percent of those targeted by the health insurance exchanges struggle with understanding key health insurance concepts. This raises concerns about some people's ability to evaluate trade-offs when choosing health insurance plans. Assisting people as they attempt to enroll in health coverage will require targeted education efforts and staff to support those with low health insurance literacy.

A case of error disclosure: a communication privacy management analysis

To better understand the process of disclosing medical errors to patients, this research offers a case analysis using Petronios’s theoretical frame of Communication Privacy Management (CPM). Given the resistance clinicians often feel about error disclosure, insights into the way choices are made by the clinicians in telling patients about the mistake has the potential to address reasons for resistance. Applying the evidenced-based CPM theory, developed over the last 35 years and dedicated to studying disclosure phenomenon, to disclosing medical mistakes potentially has the ability to reshape thinking about the error disclosure process. Using a composite case representing a surgical mistake, analysis based on CPM theory is offered to gain insights into conversational routines and disclosure management choices of revealing a medical error. The results of this analysis show that an underlying assumption of health information ownership by the patient and family can be at odds with the way the clinician tends to control disclosure about the error. In addition, the case analysis illustrates that there are embedded patterns of disclosure that emerge out of conversations the clinician has with the patient and the patient’s family members. These patterns unfold privacy management decisions on the part of the clinician that impact how the patient is told about the error and the way that patients interpret the meaning of the disclosure. These findings suggest the need for a better understanding of how patients manage their private health information in relationship to their expectations for the way they see the clinician caring for or controlling their health information about errors.

Disclosure of adverse events in the United States and Canada: an update, and a proposed framework for improvement

There is consensus that physicians, health professionals and health care organizations should discuss harm that results from health care delivery (adverse events), including the reasons for harm, with patients and their families. Thought leaders and policy makers in the USA and Canada support this goal. However, there are gaps in both countries between patients and physicians in their attitudes about how errors should be handled, and between disclosure policies and their implementation in practice. This paper reviews the state of disclosure policy and practice in the two countries, and the barriers to full disclosure. Important barriers include fear of consequences, attitudes about disclosure, lack of skill and role models, and lack of peer and institutional support. The paper also describes the problem of the second victim, a corollary of disclosure whereby health care workers are also traumatized by the same events that harm patients. The presence of multiple practical and personal barriers to disclosure suggests the need for a comprehensive solution directed at multiple levels of the health care system, including health departments, institutions, local managers, professional staff, patients and families, and including legal, health system and local institutional support. At the local level, implementation could be based on a translating-evidence-into-practice framework. Applying this framework would involve the formation of teams, training, measurement and identification of local barriers to achieving universal disclosure of adverse events.

Significance for public health

It is inevitable that some patients will be harmed rather than helped by health care. There is consensus that patients and their families must be told about these harmful events. However, there are gaps between patient and physician attitudes about how errors should be handled, and between disclosure policies and their implementation. There are important barriers that impede disclosure, including fear of consequences, attitudes about disclosure, lack of skill, and lack of institutional support. A related problem is that of the second victim, whereby health care workers are traumatized by the same harmful events. This can impair their performance and further compromise safety. The problem is unlikely to be solved by focusing solely on increasing disclosure. A comprehensive solution is needed, directed at multiple levels of the health care system, including health departments, institutions, local managers, professional staff, patients and families, and including legal, health system and local institutional support.

Building bridges: future directions for medical error disclosure research

OBJECTIVE

The disclosure of medical errors has attracted considerable research interest in recent years. However, the research to date has lacked interdisciplinary dialog, making translation of findings into medical practice challenging. This article lays out the disciplinary perspectives of the fields of medicine, ethics, law and communication on medical error disclosure and identifies gaps and tensions that occur at these interdisciplinary boundaries.

METHODS

This article summarizes the discussion of an interdisciplinary error disclosure panel at the 2012 EACH Conference in St. Andrews, Scotland, in light of the current literature across four academic disciplines.

RESULTS

Current medical, ethical, legal and communication perspectives on medical error disclosure are presented and discussed with particular emphasis on the interdisciplinary gaps and tensions.

CONCLUSION

The authors encourage interdisciplinary collaborations that strive for a functional approach to understanding and improving the disclosure of medical errors with the ultimate goal to improve quality and promote safer medical care.

PRACTICE IMPLICATIONS

Interdisciplinary collaborations are needed to reconcile the needs of the stakeholders involved in medical error disclosure. A particular challenge is the effective translation of error disclosure research into practice. Concrete research questions are provided throughout the manuscript to facilitate a resolution of the tensions that currently impede interdisciplinary progress.