COMMENTARY
Disclosing Harmful Medical Errors to Patients
A Time for Professional Action
P
HYSICIANS FIND THEM-selves in an increas-ingly untenable bind when deciding whether and how to disclose harmful medical errors to patients. Er-ror disclosure is desired by patients and advocated by safety experts and ethicists and is now included in many hospital policies, state laws, and ac-creditation standards.1-13Yet, as the
malpractice crisis deepens, calls to fully disclose errors to patients can strike physicians as naive, simplistic, and unacceptably risky.14-16As a
re-sult, many patients receive little in-formation about errors in their care. Recently, only 30% of physicians who experienced an error in their own health care said that they were told about the error, a disclosure rate con-sistent with prior studies.17-23
Improving the disclosure pro-cess could enhance patients’ satis-faction and their trust in physi-cians’ integrity.24-26Furthermore, as
error disclosure becomes better integrated with patient safety activities, such disclosure could promote higher quality of care. Yet, physicians may feel that the medi-cal malpractice climate poses an insurmountable barrier to disclos-ing errors more fully to patients. We propose important, feasible steps that physicians, health care institutions, medical societies, spe-cialty organizations, and certifying bodies can take, even in the cur-rent litigious environment, to improve the disclosure of harmful errors to patients.
THE DISCLOSURE DILEMMA
Patients strongly endorse error dis-closure and desire a deceptively simple set of information about harmful errors: (1) an explicit state-ment that an error occurred; (2) what the error was; (3) why the
er-ror happened; (4) how recurrences will be prevented; and (5) an apol-ogy.19,27-30Patients especially value
knowing why an error happened and how recurrences will be prevented, information that demonstrates that a lesson has been learned from the error.31Patients desire disclosure
even when errors cause only minor harm.29
Yet, for physicians, the risks of disclosing errors to patients, espe-cially the legal risks, are becoming increasingly worrisome.32Faced with
skyrocketing malpractice premi-ums, the potential loss of insurabil-ity following a single claim, and ris-ing jury awards, physicians are justifiably reluctant to do anything that might precipitate a lawsuit.33
Also, many patients appear to en-dorse punitive responses to errors. In one survey, 39% of patients said that following a hypothetical medi-cal error, “I would want the doctor to be punished (eg, to be put on pro-bation or to have their license sus-pended or revoked).”31In another
survey, 69% said that the physician “should be sued for malpractice” in a case involving a fatal medication error.20Such research findings
pro-vide little reassurance for physi-cians who are anxious about the le-gal risks of disclosure.
Even if physicians decide to dis-close an error to a patient, they may be unsure exactly what to say. While basic disclosure guidelines have been promulgated, such guidelines are typically based on clear-cut harm-ful errors, such as wrong-site sur-gery.34-36Yet, in reality, most
medi-cal errors are highly complex, and a given event can involve multiple active and latent errors at both the system and the individual provider levels, errors whose relative contri-bution to the patient’s bad out-come is unclear.37,38Complicating
matters further is the absence of
evi-dence that recommended disclo-sure strategies are effective. Many in-stitutional disclosure policies heighten such confusion by send-ing clinicians mixed messages, such as advocating error disclosure but admonishing providers not to ad-mit liability.39-41Also, few
physi-cians have had training in error dis-closure and may worry about the shame and embarrassment of dis-closing an error.16,42
This disclosure dilemma is espe-cially acute for private practition-ers. Many disclosure guidelines were crafted in large, self-insured health care institutions, in which malprac-tice insurance availability and pre-miums are of much less concern than in community settings.43
Fur-thermore, some private malprac-tice contracts suggest that disclos-ing an error to a patient in a way that admits legal liability could consti-tute noncooperation in the physi-cian’s defense, voiding the cover-age.44While there is no published
evidence that such noncooperation clauses have actually been invoked by insurers, the possibility of los-ing liability coverage in the face of a claim could be a powerful deter-rent to disclosure. Private physi-cians may also have limited access to error analysis resources, hamper-ing efforts to understand and tell pa-tients about an error’s cause and pre-vention.27Faced with such pressures,
even private physicians who gener-ally favor disclosure may feel that ac-tually disclosing an error poses un-acceptable risks.
ENHANCING ERROR DISCLOSURE:
THE NEXT STEPS
Failing to communicate effectively with patients about errors threat-ens public confidence in medicine and ultimately undermines the
qual-ity of health care.45Therefore, we
propose a variety of strategies that medical professionals and health care organizations should consider implementing as important next steps in improving the disclosure of harmful errors (Table).
.
DISCLOSURE AND MALPRACTICE
A critical next step in improving dis-closure is clarifying the relation-ship of error disclosure to medical malpractice. The experience of being sued can be devastating for physi-cians, regardless of the claim’s out-come.15,46,47Therefore, it is
under-standable that disclosure’s potential for precipitating a lawsuit presents a major obstacle to informing pa-tients about errors.16,42Some
schol-ars believe that disclosure could in-deed heighten liability, noting that only 3% to 5% of the patients who are injured by negligent care actu-ally sue.14,32This low rate of
law-suits may partly be due to patients being unaware that medical errors
were responsible for an adverse out-come.48Therefore, disclosure could
alert an unsuspecting patient that a harmful error has happened, gener-ating more lawsuits.14
Yet, there is accumulating evi-dence of a potentially beneficial effect of disclosure on the likeli-hood and outcomes of malpractice suits, information that medical so-cieties and specialty organizations should communicate more clearly to physicians. Patients who believe that they are receiving incomplete information about an error often litigate simply to learn what hap-pened and to prevent error recur-rences.49-53Multiple survey studies
have shown that error disclosure reduces patients’ intention to file a lawsuit.29,31,54A robust body of
le-gal and psychological research also suggests that apologies may help deter legal action and promote more effective settlements of law-suits that have been filed.55
Fur-thermore, mock jury studies have shown that damage awards are of-ten higher if errors have not been disclosed.56The failure to disclose
errors can itself create legal liabil-ity related to fraud.57Finally, some
case series from settings where malpractice concern is lower, such as in Veterans Affairs Hospitals and in Canada and Australia, suggest that more open disclosure does not substantially increase legal liabil-ity.58-60The University of Michigan
Health System recently reported that since a policy of encouraging physicians to disclose errors and to apologize has been adopted, an-nual attorney fees and legal actions have been reduced by more than 50%.61A campaign to educate
phy-sicians about disclosure and mal-practice could also reduce litiga-phobia by correcting physicians’ malpractice misperceptions, such as their overestimates of the likeli-hood of litigation.62-64
Historically, the medical profes-sion’s primary objective related to malpractice has been to promote tort reform. Fundamental changes to the tort system, such as no-fault or en-terprise liability approaches, could ease physicians’ concerns about dis-closure. However, such reforms ap-pear unlikely to succeed in the cur-rent political climate.1 4 Other
proposed responses to the malprac-tice crisis, such as capping nonpu-nitive damages, may limit pre-mium growth but are unlikely to reduce physicians’ perception of the legal risk of disclosure. Many states have adopted “apology laws” that ex-empt expressions of regret from being considered an admission of li-ability.65Still, it is unclear how much
protection apology laws actually pro-vide, as statements concerning “cul-pable conduct” are generally still ad-missible.66In contrast, Colorado’s
apology law protects the entire dis-closure statement, a model that the profession should urge other states to adopt.67Medical societies and
spe-cialty organizations should also lobby insurers to remove language in malpractice policies that inhibits disclosure.
Some malpractice insurers them-selves are adopting more progressive approaches to disclosure, a develop-ment that is of particular value to pri-vate practice physicians. For ex-ample, COPIC, a large Colorado malpractice insurer of academic and community physicians, provides its Table. Next Steps for Medical Profession to Enhance Disclosure
Group Primary Next Steps
Individual physicians Reconsider relationship between malpractice and disclosure
Seek opportunities to practice disclosure skills Incorporate patients into quality improvement efforts Hospitals and other health care
organizations
Enhance disclosure policies, addressing disclosure content and timing
Train clinicians in disclosure
Integrate disclosure and quality improvement activities Provide emotional support for health care workers
involved in errors Local medical societies and voluntary
specialty organizations
Educate physicians about malpractice
Develop evidence-based guidelines for disclosure Create, disseminate disclosure training
Lobby for broader apology bills and against malpractice contracts that inhibit disclosure
Provide error analysis resources for private practice physicians
Certifying boards Include patient safety and disclosure in continuous professional development
Test disclosure skills on certification examinations Medical educators Include disclosure education and skills training in
required curriculum
Accrediting bodies Clarify current standards regarding disclosure of “unanticipated outcomes” to address disclosure of medical errors
Health services researchers Explore variation in patients’ disclosure preferences Study relationship of disclosure to malpractice Prospectively evaluate impact of different disclosure
strategies on real-world outcomes (eg, trust, satisfaction, and intent to sue)
physicians with training and sup-port in error disclosure.68COPIC’s
in-novative program, called “3Rs” (rec-ognize, respond, and resolve), assists patients who have experienced an un-anticipated adverse outcome, includ-ing reimbursement for economic losses. Since December 2001, there have been 453 qualifying incidents, resulting in 153 patient reimburse-ments, totaling almost $800 000. To date, none of these cases has gone to litigation, and such payments do not trigger reporting to the National Prac-titioner Databank. The medical pro-fession should encourage the expan-sion of such pioneering programs.
Physicians should recognize that no approach to error disclosure is without legal risks and that uncer-tainty about disclosure’s effect on malpractice will continue for the foreseeable future.69While the
pos-sibility that error disclosure could precipitate (or fail to prevent) a law-suit cannot be ignored,70there is no
published evidence to suggest that more open disclosure of errors dra-matically increases liability. Fortu-nately, the vast majority of patients who are injured by medical errors never sue.48Thus, we believe that
physicians can presume that disclo-sure will lead to an overall reduc-tion in the likelihood of a success-ful lawsuit.
ESTABLISHING AND DISSEMINATING EVIDENCE-BASED GUIDELINES FOR ERROR
DISCLOSURE
Once physicians have decided to dis-close an error, additional challenges arise regarding how much informa-tion to share with the patient. Decid-ing what disclosure content best con-veys accountability to patients is especially difficult, as is determining whether disclosing why an error hap-pened is akin to admitting legal li-ability.71Physicians further wonder
about disclosure language, eg, whether to say such words aserror,
mistake, orharmor to apologize. How-ever, currently, no guidelines exist re-garding the minimal information that should be disclosed to patients fol-lowing harmful errors.
The medical profession, par-ticularly physicians with expertise
in communication, should create evidence-based guidelines for dis-closure of harmful errors. Such guidelines should be fundamen-tally patient centered. However, if they are based purely on patients’ preferences for disclosure (“tell me everything”), without incorporat-ing the perspectives of physicians, health care institutions, and risk managers regarding what informa-tion is reasonable to share with pa-tients, such standards are unlikely to be effective. Disclosure guide-lines should also provide detailed information regarding what errors need to be disclosed and address not only clear-cut harmful errors but also more common and com-plex situations, such as adverse events that are not clearly errors or errors that cause minimal harm. Such guidelines can draw on exist-ing strategies for deliverexist-ing bad news to patients.72,73 Physicians
should recognize, however, that error disclosure is often more com-plicated than simply sharing bad news, given that the physicians may be partly responsible for the adverse event.
Filling gaps in the existing re-search could help create such evi-dence-based disclosure guide-lines.22Most prior studies of patients’
disclosure preferences have been performed outside the acute care set-ting and have used hypothetical vignettes. It is not known whether these disclosure preferences change when patients are ill or have actu-ally experienced an error. From phy-sicians’ perspectives, the most note-worthy gap is the absence of prospective evidence about whether recommended disclosure strategies improve patient satisfaction and the intent to sue. Health services researchers should seek to fill these research gaps, thereby help-ing to validate and refine disclo-sure guidelines.
Once these guidelines have been developed and tested, the profes-sion should create, disseminate, and assess educational programs to enhance physicians’ disclosure skills. While it is important that basic concepts related to patient safety and error disclosure be intro-duced at the earliest stages of medi-cal education, the most urgent need
at present is providing disclosure training at the graduate and con-tinuing medical education levels. The topic of error disclosure repre-sents an ideal opportunity for resi-dency programs to integrate many of the core competencies identified by the Accreditation Council for Graduate Medical Education, including patient care, practice-based learning and improvement, interprofessional and communica-tion skills, and professionalism.74
As with any communication skill, training in disclosure should include both didactic instruction and the opportunity to practice and receive feedback, such as by dis-closing hypothetical errors to stan-dardized patients. Emphasizing the positive impact that disclosure training could have on quality improvement and risk management activities may help educators gar-ner institutional support for disclo-sure education.
INTEGRATING ERROR DISCLOSURE AND QUALITY IMPROVEMENT
While physicians are acutely aware of the risks of disclosure, all mem-bers of the medical profession should increase their understand-ing of the potential positive befits of disclosure, such as en-hancing quality improvement.75-77
Physicians and health care institu-tions may underestimate patients’ desire for information about why an error happened and how recur-rences will be prevented, informa-tion that currently is shared with pa-tients only in vague terms, if at all.16,78
For example, the American Society for Healthcare Risk Management advises that “the disclosure of in-vestigation outcomes should be fac-tual and broad. . . . Possible ap-proaches include saying ‘In our inves-tigation we learned we have an area in our pharmacy process that could be improved in order to prevent this type of error from happening again. We have instituted some of these changes already.’ ”36Such a general
statement may actually create more questions in patients’ minds than it answers, especially if the institu-tion fails to disclose exactly what the pharmacy problem was and what
process changes have been imple-mented.
By advocating for the impor-tance of providing patients with spe-cific information about an error’s cause and prevention, the medical profession can, over time, promote an important paradigm shift from disclosure as damage control to dis-closure as an integral component of patient safety. Integrating disclo-sure and quality improvement could enhance both activities. Appreciat-ing patients’ desire to know about an error’s cause and prevention could encourage physicians and safety programs to examine errors more closely and to develop more effec-tive prevention plans. Applying qual-ity improvement approaches to the disclosure process could also help identify common disclosure break-downs and test strategies for im-proving disclosure. Also, physi-cians’ willingness to disclose errors to patients will likely increase once they witness the disclosure process stimulating implementation of er-ror prevention plans and reducing future errors.16Achieving
disclo-sure’s quality improvement poten-tial will require institutions to strengthen the typically tenuous and blame-oriented connections among their patient safety, quality improve-ment, and risk management grams as well as between these pro-grams and frontline clinicians.
ADDITIONAL STEPS TO ENHANCE DISCLOSURE
Health care institutions can take a number of additional steps to enhance disclosure. They can strengthen their error disclosure policies, providing clinicians with guidance about the content of dis-closure, when to explicitly state that an adverse event was due to an error, and how to apologize. Disclosure policies should con-sider the optimal timing of dis-closure, avoiding both hasty and ill-considered declarations or inadvertently creating the impres-sion of stonewalling and obfusca-tion. Furthermore, many clini-cians have had limited personal experience in disclosing harmful errors. Therefore, hospitals and large medical groups should
pro-vide physicians with ready access to disclosure assistance, using innovative resources such as just-in-time disclosure coaching or mediation.7,79 Also, health care
workers who are involved in harmful medical errors often have considerable unmet emotional needs.80-84 Enhanced emotional
support for health care workers after errors have occurred would help them communicate more effectively with the patient who experienced an error.
Providing such disclosure assis-tance and emotional support could reduce common mistakes in error disclosure, such as hypodis-closure (disclosing insufficient information), hyperdisclosure (disclosing excessive informa-tion), and misdisclosure (disclos-ing information later found to be incorrect). Clinicians should be especially wary of misdisclosure, the correction of which often involves the challenging task of trying to convince a patient that what on first glance appeared to be a harmful medical error was actually not preventable. Deter-mining whether an error has occurred or whether the error caused harm frequently requires formal analyses by patient safety experts. Integrating error disclo-sure and quality improvement as d e s c r i b e d a b o v e w o u l d h e l p ensure that patients receive accu-rate information about errors.
Certifying bodies, specialty boards, and medical societies can also take additional steps to en-hance disclosure, especially in pri-vate practice. Pripri-vate physicians rarely have access to safety pro-grams to analyze outpatient errors, making it difficult for physicians to inform patients about an error’s cause and prevention. Medical so-cieties and specialty organizations could facilitate access to such error analysis resources. Also, as the board certification process evolves from pe-riodic examinations to continuous learning and quality improvement, specialty boards could spur physi-cians in both private and academic settings to learn and practice new er-ror disclosure skills.85Accrediting
bodies, such as the Joint Commis-sion on Accreditation of
Health-care Organizations, should expand existing disclosure standards, which currently require the disclosure of “unanticipated outcomes” to pa-tients but provide little guidance re-garding the content of disclosure or the need to state explicitly if an un-anticipated outcome was the result of an error.86
CONCLUSIONS
The risk that disclosing an error to a patient could prompt a law-suit cannot be disregarded. How-ever, the medical profession can-not continue to ignore its failure to communicate effectively with patients who have been harmed by medical errors. Our patients unequivocally want and certainly deserve full disclosure of harmful medical errors. Rather than remain-ing paralyzed by the litigious health care environment, we must start tak-ing the necessary steps to achieve this goal.
Correspondence:Dr Gallagher, Uni-versity of Washington School of Medicine, 4311 11th Ave NE, Suite 230, Campus Box 354981, Seattle, WA 98195 (thomasg@u.washington .edu).
Financial Disclosure:None.
Funding/Support:This work was
supported in part by the Greenwall Foundation Faculty Scholars Program, New York, NY, and by g r a n t s 1 U 1 8 H S 1 1 8 9 8 0 1 a n d 1K08HS01401201 from the Agency for Healthcare Research and Qual-ity, Rockville, Md.
Acknowledgment:We thank Eric
Larson, MD, MPH, for his insight-ful contributions to the manuscript for this article, Alison Ebers and Mary Lucas, RN, MA, for their as-sistance with manuscript prepara-tion, and Victoria Fraser, MD, and the Washington University Patient Safety Project for their support.
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