In the U.S., there is broad ethical consensus supporting disclosure of known medical errors, but even so, the physician who must acknowledge a mistake faces a daunting situation. Disclosing medical errors is the theme of this physician-patient interaction resulting in a medical liability lawsuit.
Improperly performed procedure
Four Basic Principles of Medical Ethics5
- Beneficence — acting for the patient’s good
- Nonmaleficence — doing no harm
- Autonomy — recognizing the patient’s values and choices
- Justice — treating patients fairly
An ophthalmologist scheduled corrective surgery for a nine-year-old female patient who had been diagnosed with a right Duane Syndrome strabismus. Before the procedure, the ophthalmologist had a discussion of risks and benefits with the patient’s mother, and she obtained informed consent to proceed with the surgery.
On the day of the surgery, the ophthalmologist began the procedure by disinserting the lateral rectus muscle of the left eye. Then, realizing her mistake, she reattached the muscle in its original position before carrying out the full operation on the right eye, which was the correct eye. After the procedure, the ophthalmologist spoke to the mother and explained that she had inadvertently begun the operation on the left eye but had realized the error, restored the eye to its original condition and closed the incision. She apologized and reassured the mother that the surgical steps completed on the left eye would have no lasting repercussions for the patient.
The patient came to two postoperative follow-up appointments. At the first, she was noted to be doing well. By the second appointment, she had developed an infection in the left eye. The mother then declined to make further appointments with this ophthalmologist, and she later filed a lawsuit on behalf of her daughter alleging wrong-site surgery resulting in left eye infection, blurred vision and continuing pain.
Experts who reviewed the case noted that Duane Syndrome strabismus is a congenital condition that is most commonly seen in the left eye, and they thought this fact possibly contributed to the ophthalmologist’s error in starting on the left eye instead of the right one. An independent medical examination showed that the patient’s left eye infection had resolved with antibiotic treatment. Experts thought that the patient’s other alleged symptoms were not attributable to the surgery on either eye. Based on expert reports, a decision was made to defend this case. The mother subsequently withdrew the claim.
More Information About Medical Ethics and Physician-Patient Encounters
- Closed Claim Case Study: Patient Demand for Unconventional Care Presents an Ethical Dilemma for Physicians
- Closed Claim Case Study: When Patients Refuse Treatment: Medical Ethics Issues for Physicians
- Closed Claim Case Study: Personal Relationship With a Patient Leads to Below Standard Care
- Closed Claim Case Study: Patient Confidentiality: Understanding the Medical Ethics Issues
- Closed Claim Case Study: Cultural Bias in Health Care Delivery Causes Communication Problems and Poor Outcome
- Closed Claim Case Study: Medical Ethics Issues with Shared Decision-Making in Patient Encounters
- Closed Claim Case Study: Improper Informed Consent Leads to Allegation of Negligent Supervision
Disclosure of medical errors to patients involves the principle of autonomy. As Jonsen confirms, “A fundamental duty of respect for [other people] dictates apology be offered the patient for harms [done by medical errors].”1 Attempts to hide medical mistakes are unethical and counterproductive to the physician-patient relationship and to the patient’s understanding of and recovery from an unanticipated outcome.1
Despite “broad ethical consensus and multiple laws affirming the importance of disclosure [of errors],” a number of studies reveal that patients are not always told about medical mistakes.2 Research suggests that fear of litigation is one reason physicians are taciturn about errors. In this case, the ophthalmologist did explain her mistake of first operating at the wrong site. This admission, coupled with the patient’s development of a left eye infection after surgery, seemed to spur the mother into filing a lawsuit. This case serves as one example confirming the legitimacy of the perception that confessing a medical error may lead directly to incurring a lawsuit alleging negligence. Even so, physicians must overcome any inappropriate “desire[s] for self preservation” that push them toward nondisclosure after an unanticipated outcome, because patients and families deserve to know what transpired to produce their current conditions.2
At the same time, some adverse outcomes in medicine are not the result of errors or negligence but are instead known complications of procedures or random outcomes brought about by anatomic or disease complexities. Physicians, therefore, must give careful thought to the way they tell patients about what happened to cause an unexpected outcome of care. An article about disclosure in Family Practice Management warns, “When things go bad, clinicians may jump to premature conclusions about whether an error occurred, perhaps feeling a need to offer some explanation about what happened or to cope with their own emotions over a bad outcome.”3
In the event of an adverse outcome, the involved physician should find out what went wrong and should explain to the patient and family what happened. Doctors have “a strict ethical obligation to disclose [errors] to patients in a timely fashion.”4 However, physicians are entitled to be exonerated from responsibility if they did not make mistakes or commit negligent acts in care; a physician should not bear the blame for a poor outcome that was a random effect rather than the upshot of a lapse or blunder.
Physicians should always meet with the patient/family to talk about causes of and future care after an adverse outcome. A physician who has made a known error should add to the outcome discussion an apology expressing honest remorse and an explanation about what will be done to avert the same problem going forward.
Medical Liability Risk Management Recommendations
Interactions after Adverse Outcomes of Care
- Get the facts about an adverse event to determine whether an apology or an expression of empathy is needed.
- Plan and schedule the disclosure/apology discussion so that it will be as beneficial as possible to the patient and other participants.
- Hold the discussion as soon as possible after immediate healthcare needs are addressed.
- Choose a quiet, private, comfortable place for the discussion suited to the patient’s and family’s needs and conducive to conversation.
- Consider who should participate; ask the patient who should be included.
- Get assistance if you feel you need help preparing for a disclosure discussion. Members of a hospital’s risk management department or patient safety team can usually aid healthcare providers who want or need assistance with facets of the disclosure task. It is also appropriate to discuss a disclosure situation with a risk management or claims representative from your liability insurance company to get advice or answers to questions you may have about going through a disclosure process.
- Elicit patient and family responses after a poor outcome, and listen to and acknowledge the responses.
- View a disclosure/apology discussion as an education opportunity.
- Honestly educate the patient and family by telling them all the facts you know about what happened.
- Don’t use jargon or talk down to the patient/family.
- Ask the patient or a family member to summarize the information back to you if you think he or she may not fully comprehend what you’re saying, and you want to check understanding.
- Do not include subjective information or conjectures.
- Don’t blame other providers.
- Document in the patient’s record about the disclosure/apology discussion.
- Include the known facts associated with how the event happened, care given in response to the adverse outcome, the key issues in the disclosure conversation, and plans for future care and future discussions.
- Preferable documentation of an apology is brief and objective; for example, “Expressed sympathy to patient about outcome.”
- If you are required to complete an incident report for an adverse event, do not refer to this report in the patient’s record or include a copy of the report in the record; incident reports should be used for a facility’s internal communication only.
- NORCAL has developed a detailed document for policyholders called “Nine Steps to Respond to Unanticipated Outcomes.” Contact NORCAL Risk Management for more information.
1. Jonsen AR, Siegler M, Winslade WJ. Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine. 7th ed. New York, NY: McGraw Hill; 2010:64-65.
2. Rubin EB. Professional conduct and misconduct. Handbook of Clinical Neurology. 2013;118:91-105.
3. Roberts RG. The art of apology: when and how to seek forgiveness. Family Practice Management. 2007;14(7):44-49.
4. Jones JW, McCullough LB. Transgression confession: ethics of medical error and disclosure. Journal of Vascular Surgery. 2013;58(6):1697-1699.
5. Beauchamp TL, Childress JF. Part II: moral principles. Principles of Biomedical Ethics. 7th ed. New York, NY: Oxford University Press;2012:99-288.