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
- Postdoctoral Fellow
- Program On Regulation, Therapeutics, And Law (PORTAL)
- Division of Pharmacoepidemiology & Pharmacoeconomics
- Department of Medicine
- Brigham and Women's Hospital
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.
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- 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