The slow, slow movement toward disclosure

The idea that physicians and nurses should disclose medical errors to patients is not new. In 1987, the VA hospital in Lexington, Kentucky began a policy of disclosure of medical errors and ensuring that patients receive appropriate compensation. (This was an experiement to see if disclosure and compensation would reduce costly litigation—which it did—but I would like to believe some small part of policy was motivated by simply wanting to be honest with patients and do the right thing.)

The movement toward being honest with patients about errors is slow. Very, very slow. But it is happening. I have found two essays on the topic of disclosure of medical errors written by members of a law firm that defends physicians in malpractice cases. The essays were written thirteen years apart, and the audience for each essay is physicians. It is interesting to see how the perspectives in the essays have shifted.

A perspective from 2000

The first one, written by Robert C. Seibel in 2000 (when the firm was called Seibel & Eckenrode), is called “A Good Idea For the Private Sector? Voluntary Disclosure of Medical Mistakes”. You can read about Mr. Seibel here. The link to the essay (PDF) is here, and I have archived the PDF here.

The essay responds to the possibility of applying the Lexington VA hospital disclosure model to private practice. Mr. Seibel writes, “My opinion is that private sector physicians should discourage a trend toward voluntary disclosure of medical mistakes in the private sector.”

I expected the typical argument against disclosure (if patients knew that an error occurred they would sue, and therefore it is better for them to not know.) But Mr. Seibel makes a different argument: The VA is not hiring quality defense lawyers, therefore they lose their cases. He says this is “…probably the major reason why there is no compelling reason to apply this VA experience to the private sector. In contrast to the VA’s government lawyers, private liability insurance companies have the ability to select, empower, and compensate competent defense counsel.”

Does anyone else find that line of reasoning a little disturbing?

Mr. Seibel then suggests that the VA policy creates an “adversarial relationship between the physician and the patient”. I can’t follow the logic behind that idea.

But Mr. Seibel does predict that the idea of disclosure or errors is not going to go away. “…I suspect that we will see a movement in such a direction under the mantle of ‘it’s the right thing to do.’ Personally, I am not convinced.” He ends with a warning to “be prepared for a debate in the near future on the merits of adopting practice disclosure of medical mistakes in the private sector, and prepare yourselves to counter the movement.”

A perspective from 2013

Thirteen years later another member of the law firm, Thaddeus Eckenrode, contributed an essay to the April/May 2013 issue of St. Louis Metropolitan Medicine. (I assume Mr. Seibel has now retired or moved to another firm, because the firm is now called Eckenrode-Maupin.) The essay is called “‘Sorry’ seems to be the hardest word… How do apologies impact lawsuits?”. You can read about Mr. Eckenrode here. The link to the essay (PDF) is here and the document is archived here, and I have archived the PDF here.

Mr. Eckenrode begins by saying that communication between physicians and patients is good, and may help to avoid lawsuits. “… [O]pen dialogue with patients after a surgical or treatment misadventure tends to mitigate harsh patient reactions and likely deflects some away from the filing of suit. For example, in a vast majority of medical malpractice cases that we have defended over the past several decades, litigating plaintiffs frequently claim in their depositions that they had little or no helpful communication with their physicians about their care, diagnosis or treatment, and often will say they ‘just wanted answers’ and couldn’t get any.”

Wait…did he say “surgical or treatment misadventure”?

Mr. Eckenrode then moves to the topic of apology laws (these are laws which exclude statements from being used as evidence in malpractice lawsuits) and specifically the law in Missouri. He explains that the Missouri law covers only benevolent gestures expressing sympathy, but not other types of statements. “…[E]xplaining what happened, who did what, why things turned out as they did, etc., are all potentially admissible in evidence.” He points out that because it is currently unclear in Missouri what statements could or could not be used as evidence, physicians “…should approach any potential benevolent conversations with patients with great caution, and watch your words carefully.”

He ends with the advice that, “…should a complication or problem arise, we suggest that it be discussed proactively and promptly by the physician, and that all questions be answered honestly and without reservation, but care should be taken to avoid suggesting that the problem is anyone’s particular ‘fault.’” I think that is fairly reasonable advice.

What I don’t think is good advice is Mr. Eckenrode’s suggestion that if multiple physicians are involved in caring for a patient they should not speak with each other before talking to the patient about an error or unfavorable outcome. His reasoning is that the meeting could be used in court as evidence that the providers are “getting their stories straight”.

Lingering concerns in 2013

So taking these two essays as data points, the trend for disclosure is moving in the right direction. But Mr. Eckenrode’s 2013 essay still has quite a bit of hesitation toward disclosure. My family’s proposed legislation for Kansas should help to address some of these concerns. (1) Disclosure conversations with patients and their families cannot be used as evidence in malpractice lawsuits. Our legislation has protections for statements of sympathy, apology, explanation, and fault, both oral and written. (2) As for the idea that talking with other physicians before disclosing to the patient would set up a situation of being them accused of “getting their stories straight”, this concern should be alleviated by having disclosure policies. I am in favor of rapid disclosure. I believe that the patient should be told what is known when it is known. But in a hospital situation (perhaps less so in a small clinical practice), figuring out what happened and what is known about the patient’s condition and prognosis is going to take involvement from multiple people. Policies clarify responsibilities and procedures. One responsibility is to investigate what happened, and that requires a team.

Moving beyond 2013

The movement for disclosure is going to continue. I hope that ten years from now the idea of not disclosing unanticipated outcomes and errors to patients seems horrifyingly primitive and ethically deranged.

But for that to happen, the focus needs to shift. The essays I discussed were written by lawyers who represent physicians in malpractice lawsuits. Physicians do not want to be sued, and the focus of the essays is about the connection between disclosing errors and being sued by a patient. But what about the connection between making an error and harming a patient? The connection between harming a patient and wanting that patient to be treated with respect, to be “made whole” again? The connection between patients harmed by medical errors and the responsibility the healthcare system has to those patients? I believe this perspective is a much more compelling argument for disclosure.

Some days I think that it is going to take a generation of physicians dying off before the healthcare system will embrace the right of patients to know about unanticipated outcomes and medical errors. But then I remember that some very senior physicians advocate for disclosure. I don’t want those people to die off.

Perhaps the shift toward embracing disclosure reflects the increasingly diverse population of medical students. More women are entering the field of medicine. There is greater diversity of ethnic backgrounds and more opportunities for students from lower income families. And for some people, medicine is a second career after they have spent a decade or more in another field. Some people are delaying medical school for a few years after being full-time parents. So maybe these new medical students are questioning the old practices. Maybe they are guided by their ethical beliefs, not just the expectations set by the way medicine has always been practiced.

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