Disclosure of errors in surgical procedures
- Marsha Ryan, MD, JD, FACS
Marsha Ryan, MD, JD, FACS
- Adjunct Professor, School of Law
- Southern Illinois University
- Michele Mekel, JD, MHA, MBA
Michele Mekel, JD, MHA, MBA
- Adjunct Professor of Law
- Michael S Sinha, MD, JD, MPH
Michael S Sinha, MD, JD, MPH
- Senior Resident
- Department of Internal Medicine, Boston Medical Center
- Boston University School of Medicine
Surgeons have an obligation to inform patients of the benefits and potential harms of surgical treatment prior to undergoing a procedure. What constitutes informed consent, including proper documentation of the informed consent session, is reviewed separately. (See "Informed procedural consent".)
Surgeons also have a duty to communicate complications that result from those surgical procedures. Although surgeons strive in daily practice to avoid harm (primum non nocere), adverse events and unfortunate outcomes occur. As complications arise, surgeons should strive to be transparent with patients about matters related to their care, in a manner that avoids confusion and self-incrimination. A natural tension exists between the surgeon’s honest goals of explaining how errors may have occurred and empathizing with the patient and their family while avoiding legal hazards .
Silence and secrecy are increasingly considered ethically and legally unacceptable responses to medical injury , as can be seen in codes of professional ethics, health care organization accreditation standards, state apology laws, and “disclosure-and-offer” programs implemented by health care systems and liability insurers. The shift from prior practice, often a “deny-and-defend” approach, has not come with particularly effective, streamlined, or reassuring processes for surgeons who are called upon to make disclosures and apologies.
The doctrines of disclosure and apology, including legal and ethical considerations, and a practical approach to guide surgeons through these difficult issues are reviewed in this topic.
DISCLOSURES, APOLOGIES, AND RELATED CONCERNS
Although they are not the same, the concepts of apology and disclosure are frequently mixed together, intertwined as they often are in practice.
- Zitter JM. Admissibility of evidence of medical defendant’s apologetic statements or the like as evidence of negligence, American Law Reports 6th 2014; 97: 519 ∫ 2.
- Sage WM, Gallagher TH, Armstrong S, et al. How policy makers can smooth the way for communication-and- resolution programs. Health Aff (Millwood) 2014; 33:11.
- National Institute of Medicine. To Err Is Human: Building a Safer Health System, 1999. http://iom.nationalacademies.org/Reports/1999/To-Err-is-Human-Building-A-Safer-Health-System.aspx (Accessed on November 13, 2015).
- Wolk SW, Sine DM, Paull DE. Institutional disclosure: promise and problems. J Healthc Risk Manag 2014; 33:24.
- American Medical Association. American Medical Association Code of Medical Ethics, Opinion 8.121 (3), 2003. http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion8121.page (Accessed on November 15, 2015).
- Schroder JS. Disclosing medical errors: practical, ethical and legal consideration, AHLA Seminar Materials, Hospitals and Health Systems Law Institute, Hollywood, Florida, February 12, 2004; AHLA-PAPERS P02120408: 1.
- Schroder JS. Disclosing medical errors: practical, ethical and legal consideration, AHLA Seminar Materials, Hospitals and Health Systems Law Institute, Hollywood, Florida, February 12, 2004; AHLA-PAPERS P02120408: 2.
- Havlisch RA, Morse MA. American Health Lawyers Association seminar materials, 2005 American Health Lawyers Association Annual Meeting, San Francisco, California, June 20, 2008; AHLA-PAPERS P06300834.
- Wei M. Doctors, apologies, and the law: an analysis and critique of apology laws. J Health Law 2007; 40:107.
- Engel B. The power of apology. Psychology Today, July 1, 2002. https://www.psychologytoday.com/articles/200208/the-power-apology (Accessed on November 14, 2015).
- Gailey L. “I’m sorry” as evidence? Why the federal rules of evidence should include a new specialized relevance rule to protect physicians. Defense Counsel J 2015; 82:172.
- Kidwell RP, Smith ML. American Health Lawyers Association seminar materials, 2005 American Health Lawyers Association Annual Meeting, San Diego, California, June 27, 2005; AHLA-PAPERS P06270528.
- Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 952 N.E.2d 1216 (Ohio Ct. App. 2011).
- Strout v. Central Maine Medical Center, 94 A.3d 786 (Me. 2014).
- Petronio S, Torke A, Bosslet G, et al. Disclosing medical mistakes: a communication management plan for physicians. Perm J 2013; 17:73.
- Zitter JM. Admissibility of evidence of medical defendant’s apologetic statements or the like as evidence of negligence, American Law Reports 6th 2014; 97: 519.
- American Medical Association, American Medical Association Code of Medical Ethics, Opinion 8.121 (5), 2003 http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion8121.page (Accessed on November 15, 2015).
- Kachalia A. Improving patient safety through transparency. N Engl J Med 2013; 369:1677.
- McDonald T. Alternative approaches in responding to medical errors. Trial 2013; 79:34.
- Mello MM, Boothman RC, McDonald T, et al. Communication-and-resolution programs: the challenges and lessons learned from six early adopters. Health Aff (Millwood) 2014; 33:20.
- Studdert DM, Mello MM, Gawande AA, et al. Disclosure of medical injury to patients: an improbable risk management strategy. Health Aff (Millwood) 2007; 26:215.
- Kidwell RP, Smith ML. American health lawyers association seminar materials, 2005 Annual Meeting, San Diego, California, June 27, 2005; AHLA-PAPERS P06270528.
- Raper SE. No role for apology: remedial work and the problem of medical injury. Yale J Health Policy Law Ethics 2011; 11:267.
- Zitter JM. Admissibility of evidence of medical defendant’s apologetic statements or the like as evidence of negligence, American Law Reports 6th 2014; 97: 519 ∫ 3.
- Renkema E, Broekhuis MH, Ahaus K. Explaining the unexplainable - the impact of physicians' attitude towards litigation on their incident disclosure behaviour. J Eval Clin Pract 2014; 20:649.
- Beaulieu-Volk D. The right and wrong way to talk to patients about adverse events. Med Econ 2014; 91:52.
- DISCLOSURES, APOLOGIES, AND RELATED CONCERNS
- - Admissibility in malpractice actions
- - Apology laws
- - Apology programs
- RECOMMENDED PROCESS
- Review policies
- Involve risk management
- Participants and timing
- Statement and delivery
- Documentation and follow-up
- SUMMARY AND RECOMMENDATIONS