Physician Disclosure of Adverse Events

The practice of medicine is an art based upon science, and all physicians understand that unanticipated complications and bad outcomes sometimes happen. When an adverse event occurs, most physicians want to fully disclose to their patients the circumstances leading up to and surrounding the event, but they may be reluctant to do so because of fear of a malpractice claim or because they think that their malpractice Insurance coverage could be compromised by the disclosure. This reluctance may be reinforced by the “common wisdom” we all share that following an auto accident one should never admit fault.

However, it is American Medical Association policy that following an unanticipated outcome, the physician is ethically required to inform the patient of all the facts necessary to ensure an understanding of what has occurred. Furthermore, recognizing that faulty systems are the major cause of errors and that we share a responsibility to change our systems to prevent future errors, the Joint Commission on Accreditation of Healthcare Organizations requires health care organizations to disclose certain adverse events, investigate their root causes, and take action to prevent their recurrence. The ethical rationale for disclosure is that the patient and his or her family have the right to know what happened — simply put, it’s the right thing to do.

Patients, of course, usually know when they have been injured as a consequence of an adverse event. If no one explains what happened to them, they assume that a mistake has been made and is being concealed — and they usually become angry. Anger drives many (if not most) malpractice claims, and it is not unusual for patients to state that the only way they could find out what happened was to get a lawyer and file a claim. Disclosure takes the edge off anger or may eliminate it altogether, and it is essential to maintaining the physician-patient relationship.

Adverse event disclosure programs (often referred to as “I’m Sorry” programs) encourage physicians to promptly disclose adverse events and bad outcomes to their patients. This requires open and honest communication that includes full disclosure of the unanticipated event, coupled with a genuine expression of concern that may include an apology if appropriate. The basic components of disclosure include the following:

• The physician acknowledges the event to the patient and family, explains what happened, and responds to the patient’s and family’s questions.
• The physician accepts overall responsibility. This is not an admission of fault or negligence.
• The physician empathizes with the patient and genuinely expresses both concern and regret. Examples of empathetic statements include:
• “This must be a difficult time, but my staff and I (or hospital and I) will be working to help you beat this.”
• “I was saddened to hear of your loss, and my staff and I send our condolences.”
• “Remember when we talked about some of the risks that can’t be anticipated or prevented? Well, this is one of those instances. But there are several actions that we’re going to take to help you, and we’ll answer your questions so that you and your family are aware of what we’re doing.”
• The physician discusses the future consequences of the injury (hospitalization, medications, surgery, disability, etc.).
• The patient receives an explanation of what is being done to prevent this event from happening again to another patient.

In most cases, the causes of an adverse event are not immediately apparent, and the initial conversation with the patient and family focuses on the patient’s current condition, the steps being taken on the patient’s behalf, a commitment to keep the family informed as additional information becomes available, and an explanation of any change in the patient’s treatment plan. While the empathetic concern and emotional support expressed during this meeting require sensitivity, an apology is usually not appropriate at this time — unless the investigation of the event has been completed and shows that a clear-cut error has occurred and could have been prevented, and that the person making the apology was responsible.

Adverse event disclosure programs often provide limited patient compensation for medical expenses resulting from the event (if not covered by insurance) and for time lost beyond what would have been the expected recovery period. Adverse events that involve a patient demand for compensation, an attorney, a summons and complaint, or state medical board involvement are excluded from the program. National Practitioner Data Bank reporting isn’t necessary because there is no written complaint or claim demanding monetary payment for damages based on the practitioner’s provision of or failure to provide health care services.

The Doctors Company and Mercy Medical Group of Sacramento have jointly initiated an adverse event disclosure program as a pilot project. The program is called CURED (Coping with Unanticipated Results and Events through Disclosure). Mercy Medical Group was selected for this pilot because it is a large multispecialty practice fully integrated with a health system, has effective physician leadership, and is committed to meaningful risk management for the purpose of promoting patient safety. The program’s intent is to promote the practice of good medicine by gaining operational experience with the disclosure and management of adverse events, identifying and correcting system errors to reduce patient injuries, and better managing risk by developing new loss prevention strategies.

While considerable time will be required to accumulate sufficient data to evaluate the CURED program, disclosure programs are already fully operational at Johns Hopkins University, the University of Michigan Health System, the Kaiser Permanente Health System, the Catholic Healthcare West System, and others. Their published experience is that “Sorry Works,” and as a consequence, many other institutions and health systems are implementing their own disclosure programs.

The Doctors Company encourages participation from its insured physicians who practice in institutions or health systems with a structured adverse event disclosure program. The key words are “structured program,” meaning that there are written program protocols, knowledgeable risk managers trained in disclosure techniques, a patient safety– oriented medical staff organization, training programs in patient disclosure and communication, and supportive institutional leadership. We discourage physicians from acting alone without the support of a structured organizational program.