How Should a Doctor Handle Disclosure When Another Doctor Hurts a Patient?

A thoughtful analysis published last month in the New England Journal of Medicine (NEJM) grapples with the difficult position a physician is in when he or she believes a colleague has committed a mistake that hurt a patient.

It’s an urgent question, and a common issue for those of us who represent patients in malpractice lawsuits. We frequently find that, as a new Pro Publica report shows, doctors who see another doctor hurt a patient turn away in silence because they don’t know how to handle it.

The New England Journal article was a joint effort by several medical, legal and academic professionals representing patient safety, medical malpractice insurance and litigation, bioethics, and health policy.

They set up their discussion with this scenario:

A young neurologist practicing in a small hospital admits a woman with high blood pressure and diabetes who has had a stroke at home. In reviewing the patient’s medical record, the doctor sees that, during two electrocardiogram (ECG) tests in her primary care doctor’s office, the patient appears to have experienced atrial fibrillation.

Afib, as it’s known, is an abnormal heart rhythm that presents a risk of stroke, chest pain and heart failure, from blood clots that develop in the non-working atrium of the heart.

The primary care doc is an internist who refers many patients to the neurologist. He read both ECGs as normal and attributed the odd rhythms to “probable mitral-valve prolapse and anxiety.” The neurologist shows the internist the ECGs and expresses concern about Afib. He suggests that she is confused by noise from the old ECG machine, but two cardiologists the neurologist consults both say it’s Afib. The internist requests the neurologist to transfer the patient to his care.

The essay, “Talking with Patients about Other Clinicians’ Errors,” discusses how doctors continue to struggle with the obligation to disclose errors even though the medical community agrees that there’s an ethical duty to communicate openly with patients who have been harmed by them.

“Existing guidelines emphasize the overall importance of disclosing errors, but (with the exception of the case study of the American College of Physicians Ethics and Human Rights Committee) they offer little guidance on disclosing others’ mistakes; this lack of guidance heightens clinicians’ uncertainty about what to do,” the authors write. “Consequently, patients may be told little about these events, and opportunities to build trust, ensure that learning occurs after errors, and avoid litigation may be lost.”

Sometimes it’s assumed that the doctor who discloses an error committed it, but health care can be delivered by many different clinicians in many different settings. Systems, as well as people, fail, and can play a role in adverse events.

When someone is trying to determine what happened, but was not directly involved in the error, one strategy is to talk with the involved colleague or colleagues about what happened, whether it was a harmful error and what, if anything, to tell the patient. In reality, though, lots of factors make this difficult: fear of how a colleague will react; cultural norms of loyalty, solidarity and “tattling”; reluctance to risk an unfavorable reputation with colleagues; power differentials associated with seniority, gender and race; dependence on colleagues for referrals…

Using the patient’s medical record to raise concerns about a potential error without initiating a direct conversation can avoid awkwardness and maintain the appearance of collegiality, but it can create evidence for a malpractice suit without allowing the colleague to dispel misconceptions.

Some health-care institutions could help determine what happened and plan for disclosure, but that can be problematic for some clinicians worried that reporting a concern to the hospital will result either in punitive retribution, or no action at all.

Clinicians and institutions might have different malpractice insurers that disagree about how to handle the event. And many clinicians work in small practices without access to institutional resources to help them figure out what happened and navigate the disclosure conversation.

Sometimes, the facts surrounding harmful errors seem clear, but doctors worry about destroying patients’ trust in the colleague who erred. They worry about triggering litigation. It’s one thing to subject a colleague to difficult conversations with an angry patient or family, and quite another to expose him or her to a potential malpractice suit.

Most states protect some aspects of disclosure conversations from use in litigation, but this protection is incomplete and might not extend to protecting an unrelated third party to the disclosure. And although research suggests that good communication about adverse events may reduce lawsuits (see our blogs, “Acknowledging a Mistake Made Her a Better Doctor” and “Admitting Errors Is the Right Thing to Do”), data are lacking to indicate how to disclose others’ errors while minimizing the risk that a patient will initiate a claim.

The writers suggest a scientific approach to figuring how to tell patients what they need to know for maximum benefit to all. They say the preferences of patients, clinicians and institutions about how to handle such situations should be solicited, and numbers should be crunched for what disclosure strategies result in what outcomes.

Patients and their families come first. “[A] patient’s right to honest information shared with compassion about what happened to him or her is paramount,” they write. “Simply put, when disclosure is ethically required, the fact that it is difficult must not stand in the way. Patients and families should not bear the burden of digging for information about problems in their care.”

The writers acknowledge that many families will need financial help after a serious error and will have a hard time getting it if they don’t have information about what happened. “Clinicians rightly perceive the current medical liability system as flawed and understandably worry that they may not be treated fairly should a patient file a claim,” the writers say, “[b]ut these concerns do not obviate clinicians’ duty to be truthful with patients; as professionals, clinicians are expected to put the patient’s needs above their own.”

The essay goes on to discuss how to discern the facts of an error, and that hospitals must take the leadership role to facilitate this discovery and to ensure that high-quality disclosure conversations occur with patients, regardless of which clinicians were involved in the event.

And institutions also are responsible for cultivating “atmospheres of trust in which people are encouraged, even rewarded, for providing essential safety-related information – but in which they are also clear about where the line must be drawn between acceptable and unacceptable behavior.”

The writers call these “just cultures,” which encourage clinicians to report adverse events and help address hierarchy issues involving nurses and trainees that can obstruct the free flow of information to the patient.

They say insurers also must lead the effort to do right, especially for doctors who don’t have strong institutional connections. Support also should be provided by medical societies and professional organizations. Patient-safety organizations, backed by strong legal protections for the confidentiality of information reported to them, could help bridge the gap in cases that involve multiple institutions.

So, back to our neurologist in her disclosure pickle. What should she do?

Here’s the writers’ prescription: After being rebuffed by the internist, she should tell him that she plans to request a formal cardiology consultation and, with the diagnosis in hand, communicate the findings to the internist and try to formulate a joint disclosure strategy. If the internist declines or objects to the cardiology consult, she should seek assistance from the institution’s medical director or other senior administrative leader, and hope that she gets support from a disclosure coach.

Well, yeah. It’s difficult, but isn’t it common decency?

The writers think so. They conclude: “… transparent disclosure of errors is a shared professional responsibility. Only a collective approach to accountability can fully meet the needs of patients and families after harmful medical errors.”

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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