The concern for public safety has spawned both regulatory (1) and legislative (2) requirements for the reporting of medical errors. The evolution of this process has caused the discussion of issues related to the full disclosure of errors to patients. While the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has stated that patients are entitled to be informed about unanticipated outcomes (3), there is concern about what should be disclosed, who should disclose, and the possibility of resulting legal action. Concern is well placed as to the latter because there is little data from facilities with disclosure policies to show that the benefit of communicating errors to patients outweighs the risk of lawsuits.
Error has been defined by JCAHO as “…an unintended act, either of omission or commission, or an act that does not achieve its intended outcome”(4). It seems obvious that a major error which causes damage, e.g., sudden death related to a treatment or the wrong surgical procedure, will trigger disclosure of at least some information. However, a recent survey (5) surprisingly revealed that even death or serious harm related to an error is not always disclosed. To the author the harmless error creates a bigger dilemma. By extension it could be argued that based on the JCAHO entitlement (3) these errors have not affected outcome and therefore do not need to be communicated to the patient. On the other hand, if informed communication is a goal then even harmless errors should be disclosed. The bottom line is that required disclosure will be dictated by regulatory bodies, state requirements (2), and the policy of each health care facility or insurance carrier.
If events creating an unanticipated outcome are to be disclosed, a communicator must be identified. The designee should be carefully chosen based on communication skill, sensitivity, and awareness of the disclosure process. “Done incorrectly, disclosure may be an admission of liability (with possibly incorrect information) to a patient”(4). It is recommended that the attending physician at the time of the error be present at the time of disclosure if he is not the spokesperson (3). The rationale is that the attending physician has an established relationship with the patient and will be the most constant link in the communication chain to the patient. This should help to provide continuity of information and discourage inaccuracies. If the information conveyed is inconsistent, this could give rise to suspicion and may be the deciding factor to pursue legal action (4).
It is paramount that the spokesperson give thoughtful attention to what is conveyed to the patient. Consensus is that the information should be factual, accurate, yet broad (3). The emphasis should be on revealing the known facts and the immediate care to be given to the patient. Events take time for complete investigation and speculation is never beneficial (4). It is suggested that one should speak slowly, use simple language, be interactive, and not overwhelm the listener (3). There should never be the placement of blame. A study reported in JAMA showed that patients believed that the way an error was revealed to them affected their response to the experience (6). It has been suggested that expressing sincere regret, in effect an apology, may help to establish trust and even avoid litigation (7). In Healing Words by Michael Woods, MD practical hints are given about what to say and how to phrase information. The goal is for the patient/family to know that the provider genuinely cares for and respects them (3).
The Joint Commission on Quality and Safety has enumerated some of the potential advantages and disadvantages of full disclosure of medical errors (1). Understandably it may be difficult for a physician to approach a person with the news that an injury or potential for injury has occurred. The JAMA study indicated that physicians would feel guilty about doing harm, disappointed about failing to practice to their own high standards, fearful about a possible lawsuit, and anxious about repercussions to their reputation (6). Of these, the most difficult hurdle may be the legal barriers to disclosure which are “entrenched in years of punitive attitudes and cultures of blame”(3).