So, do you have to tell a patient if you make an error in their care and, if so, under what circumstances? Dr. MedLaw discusses what advantages disclosure may give you.

To answer that question, let’s consider a surgeon who injures the CBD during a cholecystectomy. The surgeon immediately recognizes the problem and does an expert repair and the patient makes an uncomplicated recovery. The surgeon must nevertheless tell the patient what happened because the patient is now at a risk for stricture that they did not face before.  Informing them of that new status is part of the surgeon’s legal duty under the doctor-patient relationship, which places a fiduciary responsibility on the physician to inform patients of facts about their health.

But, you may say, isn’t it enough to just generally caution about stricture without admitting that it was you who created that risk? The answer is that a patient is entitled to know how they came to their present state of health. If the matter requires disclosure the patient is also entitled to know its cause. That obviously applies if the cause is their own physiology and it applies no less if that cause is you. After all, it is what you would want to know if you were the patient.

The legal standard of what should be disclosed is materiality of the matter to the patient’s present and future health. The widest scope will be that, in the words of the Fifth Circuit, the fiduciary relationship of the doctor to the patient imposes a duty to disclose “known facts”, which includes “the discovery of any adverse condition afflicting the patient.” Other courts use the principles of informed consent, employing either the Reasonable Physician standard to hold that a doctor must disclose those facts that he or she should know that the patient needs in order to make a decision about their health or the Reasonable Patient standard to hold that the doctor must disclose whatever a reasonable patient in the situation would want to know. However, all courts do agree that disclosure must be made of facts that can affect current health status and future health events and choices, while minor and limited matters and mistakes that were caught before any harm was done do not have to be disclosed.

Under these principles, our surgeon therefore tells the patient the truth but puts the matter in context, reminding the patient that this was a possible complication that they were informed of pre-operatively and that the risk of stricture is low. He also tells the patient about signs of stricture, such as pain and jaundice, to be on alert for, and instructs the patient to contact a physician immediately if these develop.

The tale of the surgeon is, of course, the relatively easy case – there was no serious harm done at the time, the patient did not need additional corrective care past the original surgery and serious harm in the future will now be hedged against.  The surgeon also had the chance to cast the matter in the most favorable terms. However, what about the hard case, the one where the harm was not fully averted or rendered merely speculative, the one where the error has already had serious sequelae, as for example, if the surgeon had not recognized and repaired the problem and the patient therefore suffered through a stormy post-operative course and eventually needed a second operation…in other words, a case that may lead to litigation?

The answer, as you may have guessed, is that the duty to disclose still applies. The general rule is that courts will require that the patient should not leave the situation under a fundamental misconception of what happened and how it affects them.

Now, this all having been said, we all know that disclosure is often not done because of the belief that what the patient does not know may never hurt the doctor, while revealing an error is a potential short road to a lawsuit. However, disclosure is increasingly being seen through a very different lens: the enlightened self-interest of damage control.

A study in Annals of Internal Medicine looked at disclosure policies at several institutions such as the University of Michigan and the VA Hospital in Lexington, Kentucky.  It found that the numbers of lawsuits decreased, the time to resolve them decreased, and the average costs of them decreased when there was disclosure of errors to patients. This is data that insurers (in fact, the study was conducted by an insurance broker) and operating officers of facilities and medical practices look at with great interest and as they begin to see less lawsuits and lower payouts there will likely be a shift from the “Slam the damn door and then bar it!” approach to one favoring disclosure.

States are also increasingly taking steps to encourage disclosure as part of a more expansive program of tort reform.  Over thirty states now have “apology” laws that shield a physician’s statement of error and regret, a statement that can help decompress patient anger, from being admissible as evidence should there still eventually be a lawsuit for medical malpractice.

It is therefore increasingly probable that it will not be solely up to you to decide whether to disclose if you make an error. Since you may therefore well end up in a situation where disclosure is mandated, let’s look at what advantages it may give you.

1. When the patient finds out about the error – which they will! – the perception that you covered up will turn that patient into an enemy…and you into a defendant.

On the other hand, disclosure under circumstances that you control puts you in the role of an honest person in the patient’s eyes, and a candid discussion actually reinforces the bond of trust, defusing the anger that usually drives a patient to a lawyer.

The disclosure discussion also allows you to frame the matter in terms of remediation. A patient who perceives that they can get well after an error is a patient less likely to become a plaintiff.

The fact that this process is intrinsic to a strong physician-patient relationship was demonstrated in a study in Medical Care in which 60% of the respondents who said that they trusted that their physician would reveal an error to them – in other words, people who had a strong trust bond with their doctor already – said that they would still recommend that physician to another person should that physician actually make an error and then reveal it.

In other words, you do not want to lose the trusted status that you already hold in your patient’s eyes and thereby let the patient reach the point where they are more comfortable talking to a lawyer than they are talking to you.

2. The risk of a lawsuit for fraudulent concealment is averted.

This is different from a malpractice action, which is grounded in negligence and therefore covered by your insurance. Fraudulent concealment is an intentional tort and is therefore not covered. This means that you will be personally responsible for your own defense and any damages. It is a cause of action that you definitely want to avoid being leveled against you.

3. The Statute of Limitations must be considered.

If there was an error sufficient to cause actionable damages its effects will eventually manifest The physician withholding information about an error from a patient is therefore gambling that when the problem finally becomes evident that it will do so only after the Statute of Limitations has run out.

This is foolhardy.

First of all, it may not do so and then the case will not be about a harm that was pre-limited by timely disclosure but about a much more severe harm, with significantly larger damages, that was allowed to develop due to the information being withheld.

Further, evidence that a physician concealed what he or she knew about their own error can itself toll the malpractice Statute of Limitations and the Statute of Limitations for a fraudulent concealment claim is going to be anywhere from three to six times longer than that for medical negligence. Non-disclosure therefore can actually extend the time to sue you.

4. Concealment will, as referred to above, likely lead to increased damages.

A patient who is unaware of an error in their care is ill-prepared to be able to respond when it begins to manifest.  In fact, believing themselves to have been cured, they may actually ignore important symptoms.

Their lack of knowledge about the error also intersects with other medical care because they lack the knowledge necessary to make reasonable informed decisions.  They may therefore either enter into treatment that will itself exacerbate the problem, or they may defer helpful treatment simply because they do not know enough about their own situation.

Simply put, they will most likely be considerably sicker by the time that they are diagnosed than if they had known what their situation was from the start.  That increases both the likelihood that a lawsuit will be brought and the ultimate pay-out if it is.

By contrast, let’s go back to our surgeon. The now-informed patient has been warned to contact a physician at the first signs of pain or jaundice and so, if a stricture does occur, that patient will be far less sick when they seek treatment and their damages will be considerably lower.

Therefore, with regard to gaining some mastery over how events will unfold and limiting your legal exposure and potential damages, disclosure can work in your interest.

Of course, up until this point, we have been discussing disclosure to patients.  However, there is also the issue of disclosure to other physicians.

In this setting, the fact of the error is simply a necessary piece of clinical information that must be given to a colleague taking over or sharing care of the patient, just as a favorable clinical fact would be.

Discussion with the other physician alone is not enough, however.  The facts must also be recorded in the chart because later consequences may end up being handled by physicians who were not made privy to the actual problem originally.

If the other doctor states that he or she prefers to do the disclosure both to the patient and in the chart, as when, for example, you are the consultant and they are the primary care physician, then that deferral to them should be documented in your chart. You should also, after a reasonable time – between two weeks and a month as long as the situation is not an emergency – check with them that the disclosure was done. If, for any reason, they will not be following through, the responsibility for disclosure returns to you.

Now, this all having been said, disclosure is definitely not a game for amateurs so let’s now look at the process and how to do it in a way that most limits your liability.

To do this it is best to “reverse engineer” from what you would want to prove in a later case.  In that regard, an evaluating court will analyze the circumstances of the disclosure under a conflict of interest assessment, looking at whether the physician favored personal interest over the interests of the patient.

To demonstrate that you acted in the interests of the patient the disclosure must be carried out within a reasonable time after you become aware of the error and it must be done in a way that practically conveys the information to the patient. Therefore, a delayed disclosure or a discussion full of unexplained medical jargon would not be deemed a valid disclosure by a court, and will actually likely be seen as willful obfuscation.

No court, however, demands the use of words like “error” or “mistake” or even a direct admission of culpability by the disclosing physician.  The doctor is free to shape the disclosure as long as (1) he or she does not fraudulently conceal their own role and (2) the patient gets the needed information.

With those ground rules in mind, let’s move on to how to actually do the disclosure.

First, it must be done with the knowledge and consent of those who will either cover or share in a liability payment. A malpractice carrier can deny both defense and coverage to a physician
who has made inculpatory statements without checking with it first, and a group or hospital that will be drawn into an action through vicarious or partnership liability is unlikely to be supportive of a physician over an event that it never had the chance to weigh in on.

In this regard, it is important to note that most successful disclosure programs, such as that at the University of Michigan, are integrated systems that then also offer an out-of-court settlement.  They can do so because they are self-insured and so they can literally run the process from beginning to end.  That would not apply when there are several independent third parties involved.

You must personally present the facts to your malpractice carrier and to the representatives of any parties that may have to answer for your conduct, such as the managing partner of your group or the administration of your hospital. You should focus on specifically what deviation there was from the Standard of Care and what the likely consequences are for the patient.  This will permit the insurer and the supervisory parties to calculate likely damages and to evaluate whether they prefer to offer settlement.

Any disclosure to the patient and/or family should then be handled within the limits that all of these parties jointly agree to because that disclosure may not end the matter and you will need them to be in your corner if you face litigation later.

The next step, before any contact with a patient or family, is documenting the situation. If you are documenting to the chart then you want to remember that what you write will be discoverable and so you want to keep your statement directed and minimal: recite the medical facts, including any additional treatment that was or may be needed as a result of the error, but do not include any personal feelings or assignment of additional blame. This applies as well if there is an institutional requirement of an incident report because while in most cases these reports will solely be used by Risk Management some states do allow their discoverability.

The next step is to select a proper time and place for the discussion. It needs to be private and quiet and you need to have enough time available to you to answer questions fully.

The actual disclosure discussion should also be limited to the patient (if able) and close family or to the designated medical decision-maker if the patient is incompetent or to the representative of the estate/next-of-kin if the patient has died. You want the group kept small because that will keep the disclosure process orderly but you do not want to leave out anyone with a legal right to know the information because that will look like intentional concealment.

You may be accompanied by someone from Risk Management or by an attorney, but you cannot be seen as mouthing their script.  Remember that this is a chance for you to affirm trust in you as the physician. If you sound like you are spouting inauthentic talking points or, worse, taking your cues from a non-physician, you will undermine yourself irrevocably.

First, briefly review, in layman’s terms, the events that led to the error. Do so in a step-wise manner, stopping to ask “Do you have any questions?” At the end, ask “Is there anything that I have not covered that you would like to ask?” This must not be a defensive overly-explanatory process – that will sound false and will actually trigger suspicion.  It should instead be tailored to provide an understandable context: “This is what happened” and “This is why it happened”.

This scope of what is revealed is something that you must control because it must cover the material facts.  The patient or family should not be in the lead, making what you reveal dependent on what they ask. In fact, a “don’t ask, don’t tell” approach is very medicolegally risky because when a fact that you never mentioned eventually surfaces your prior conversation will be seen as a deliberate cover-up. In other words, while you will make accommodations for the educational level, age and emotional capacity of those you are speaking to, the obligation to control the fullness of the disclosure is yours

You must then make a personal statement.  As noted earlier, you do not have to use specific words of apology, but most patients and families will expect to hear “I am sorry” and you must be prepared to deliver it and to be sincere when you do.  In choosing your words, though, make sure to stay within the bounds of any “apology law” that your state may have that shields such comments from use in later litigation because those laws may shield some specific phrases and not others.  Risk management or the attorney should advise you in this regard.

The next – and possibly most important – step is the assurance that the matter is now being dealt with, both in the specific case and to prevent future errors. Patients and families will want to know that their situation is in hand and that you learned from the event.

Finally, document the discussion.

This leaves only the situation in which you believe that the disclosure will do more harm than good. Non-disclosure in these cases is referred to as “benevolent deception” or “therapeutic privilege”.

However, this approach, even if sincerely meant for the patient’s good, is simply antithetical to the concepts of patient autonomy and shared decision-making that underlie the very right of the patient to the information. Therefore those situations in which you are concerned that disclosure may have an adverse effect on the patient are situations in which an ethics committee or patient advocate should be brought in to ensure that the disclosure is done properly either to the patient or to someone who can act for them.

Dr. Medlaw is a physician and  medical malpractice attorney. This article originally appeared on SERMO, which retains all rights to it.

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