Law & Medicine

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.


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