Home Risk Management Does disclosing errors help or hurt your chances of being sued?

Does disclosing errors help or hurt your chances of being sued?

December 2007

Published in the December 2007 issue of Today’s Hospitalist

The situation is a familiar one for hospitalists: An elderly patient who has been treated for suspected heart failure and pneumonia is discharged on a Monday morning “but only after positive lab cultures for infection are missed during a handoff. The patient is not only re-admitted, but spends time intubated in the ICU.

This hypothetical case, which Allen Kachalia, MD, JD, presented at the Society of Hospital Medicine’s annual meeting in Dallas earlier this year, generated a wide range of reaction from the hospitalists in the audience. While nearly everyone agreed that a mistake and an adverse event had occurred, audience reactions were mixed on whether there had been negligence.

They also had a wide range of opinions on who was at fault, given that both the patient’s cardiologist and primary care physician had promised to follow the patient post-discharge.

The case was further complicated by the fact that the ultimate outcome was positive, with the patient recovering and his family thanking the hospitalist for “wonderful care.”

The audience dissent highlighted some of the most contentious issues raised during the presentation: Should the hospitalist have disclosed the error? And would disclosing the incident to the patient and his family have led to a malpractice claim?

Here’s an overview of the issues that Dr. Kachalia raised around disclosing medical errors and adverse events, and what those mean for hospitalists.

Hospitalists at high risk
Judging by the jam-packed room and the number of hands that remained raised throughout much of Dr. Kachalia’s presentation, hospitalists are acutely concerned about the malpractice risks they face.

Dr. Kachalia, a hospitalist who also does research on medical malpractice and health care quality at Brigham & Women’s Hospital in Boston, said that as hospitalists’ clinical roles expand, their malpractice exposure also increases. “Hospitalists practice in a high-risk setting for adverse patient outcomes,” he said. Another problem? They don’t have the potentially mitigating “advantages of a long-term relationship with patients.”

Hospitalists in the audience showed that they are not only well aware of those dynamics, but that they often behave accordingly.

When Dr. Kachalia asked session participants if they sometimes practice defensive medicine, for example, the vast majority raised their hands.

But when the topic turned to the patient’s case and whether the missed lab result is a lawsuit if full disclosure is made, there was considerably less agreement. Dr. Kachalia acknowledged that the question of whether disclosure helps or hurts is a tough one, especially in the kind of gray areas that are part of the case he presented.

Disclosure pros and cons
The fear of increased liability with disclosure is significant, he explained, because one of the key unknowns is how many more malpractice claims would occur if disclosures were more routinely made. Disclosure may be especially difficult for hospitalists, “because they often don’t have all of the information at hand, and the post-error period is a trying time for patients and caregivers.”

Dr. Kachalia cited surveys indicating that at least 90% of patients think error disclosure is in order as soon as the incident is discovered, regardless of the outcome.

Interestingly, a survey published in the March 16, 2004, Annals of Internal Medicine of 1,000 New England health plan members found that although 80% thought it reasonable to expect an error during their care, 67% also said that financial compensation should be provided if one occurred. (Thirty-eight percent thought that some type of physician remediation or discipline should follow.) At the same time, he said, no studies to date “have shown definitively the overall effect of disclosure on liability “but many reports have shown that apologies may result in patients not suing.”

At present, at least 28 states require adverse event reporting, though definitions of what constitutes a reportable event vary. The following six states require disclosure in specific circumstances: Florida, New Jersey, Nevada, Pennsylvania, Vermont and Washington. And in at least 28 states, Dr. Kachalia added, “I’m sorry” laws are now on the books.

Relationship realities
Patients may be more aware of the risks they face during hospitalization, but when an injury does occur, the factors that influence patients’ decision to sue often have more to do with relationship than with the circumstances of the error itself.

Based on findings from several studies in the last decade, Dr. Kachalia noted, “patient dissatisfaction appears to be a major predictor of malpractice claims.”

He noted two now well-established points: Relationship problems “from poor communication to feeling rushed or ignored by physicians “are often cited by patients who initiate a lawsuit. Physicians who receive more patient complaints, for just about any reason, are also more likely to be named in malpractice suits.

What’s the upshot for hospitalists? To reduce their risk, they should focus not only on maintaining good relationships with patients but also on the activities their colleagues and hospitals are increasingly asking of them. Those include taking a lead in safety improvement initiatives and fixing “systems issues,” they encounter in their work, Dr. Kachalia said.

Here are other tips Dr. Kachalia offered for reducing hospitalists’ liability exposure following a harm-causing adverse event:
“¢ Know your hospital’s policy on adverse event or error disclosure, and follow it.
“¢ Don’t go it alone. Involve risk management and other supporting resources, such as patient relations staff, social workers and/or chaplains.
“¢ Communicate clearly, sincerely and openly.
“¢ It’s generally OK to say you’re sorry (after discussing with risk management or your insurer) that the incident or bad outcome occurred, but don’t lay blame.
“¢ State the known facts and assure patients (or families) that all facts will be gathered.
“¢ Reassure patients that steps will be taken to avoid future occurrences of the problem.

Last, but hardly least, Dr. Kachalia said, hospitalists involved in an adverse event, either directly or indirectly, should make sure they document all related discussions. An apology and paper trail "may not stop a lawsuit," he said, but it could affect its outcome “and reduce its impact on physicians.

Bonnie Darves is a freelance writer specializing in health care. She is based in Chadds Ford, Pa.

Malpractice quick facts

  • According to one study, 60% of plaintiffs citied relationship problems as the reason for suing.
  • Studies find that the ratio of negligent adverse events to malpractice claims filed is as high as 7:1, yet only one claim in six filed represents a negligent injury.
  • National survey results published in 2002 found that 77% of doctors felt that error disclosure should be required, but 89% of the public called for mandatory disclosure. While 86% of physicians thought reporting should be confidential and not publicly released, only 34% of the public agreed.