Healthcare providers know that adverse events can and do occur in medicine despite the best medical experience and education. CAP defines an adverse event as either a known risk of medical care (a complication) or an injury caused by a medical error. Understandably, emotions run high for the physician, patient, and the patient’s family after an adverse event occurs. In most cases, it is the physician’s duty to inform the patient and/or family of the event.
Disclosure of an adverse event is a very difficult conversation to have. However, it is a critical conversation which requires “kid gloves,” or very delicate treatment. The California Medical Association (CMA) states “physicians have an ethical obligation to honestly explain the various aspects of a patient’s condition and treatment, which includes giving accurate information when there has been an unanticipated outcome in a patient’s care”.1
According to JAMA, patients and their families want and expect2:
Disclosure of the error.
To understand what happened.
To understand why the error happened.
To know how the consequences of the error will
be mitigated.
To be assured recurrences will be prevented.
Emotional support, including an apology.
CMA also notes that disclosing an adverse event can help reduce the risk of litigation and indicates that studies have shown that not notifying a patient of a medical error, even a minor one, increases the risk of litigation. If a case involving an adverse outcome proceeds to litigation, the disclosure of the event could favorably impact the case. An analysis of jury opinions has indicated that jurors may consider disclosure as a sign of the practitioner’s integrity.1
Disclosure
The disclosure conversation should happen as soon as possible after the event or after the event is discovered. Here are some helpful guidelines to follow:
It is imperative to never use words that suggest fault, such as “error,” “injury,” or “mistake.”
Do not blame others, what we here at CAP refer to as “finger pointing”.
Take a deep breath and be sure you are not angry while having this conversation. (Ambrose Bierce is quoted as saying “speak when you are angry, and you will make the best speech you will ever regret”.)
Provide empathy during the disclosure process.
Do not dismiss or trivialize the patient’s experience and emotions.
Speculation is never helpful, do not guess. Consider, “While we do not know the cause at this time, we are working to understand what happened and will keep you informed as information is learned.”
Give the patient or family your contact information. Be available to answer questions and return phone calls in a timely manner.
Be patient and listen.
A patient or members of their family may react differently to the disclosure and it is important to be prepared. ECRI Institute provides a list of the reactions that you may encounter during the disclosure process and recommendations for responding.3
Crying
Give the individual permission to cry.
If meeting in person, always have a box of tissue available.
Anger
Do not try to talk the person out of being angry.
Acknowledge that anger is a common reaction.
Explain that the event is being taken very seriously and an investigation will be conducted.
Express genuine empathy and regret for the situation, without taking blame.
Denial
Inform the person that denial is a common reaction.
Explain the facts of the event as they are known at the time. “The patient is entitled to know the facts of what happened, but not necessarily the ultimate legal facts regarding what happened (e.g., someone was negligent)” (ECRI).3
Repeat the truth as often as necessary.
Apology/Sorry Works
Apologizing is an important factor in the disclosure process. You can apologize empathetically without admitting guilt or fault. “Results of one study indicate that 88% of patients wanted their physicians to apologize after an adverse event occurred” (ECRI).3 However, there is a distinct difference between “I’m so sorry that you had this complication,” versus “I am sorry this happened, we made a mistake”. Some states have implemented “I’m sorry” laws intended to promote disclosure and apology in healthcare. As of 2012, 36 states have implemented such laws (Saitta and Hodge).4 Saying “I’m sorry” is not an admission of liability in California (Evidence Code 1160a).5 However, the law varies state to state so it is advisable to be familiar with the laws where you practice.5
Examples of Empathetic Apologies:
I’m sorry you are experiencing this
I’m sorry this happened
I’m sorry you are going through this
I’m sorry this complication occurred
Examples of Admitting of Fault:
I’m sorry; this was my fault
This was my mistake
I take full responsibility
We made an error
In addition, apologizing can rebuild the patient’s and family’s feelings of trust in the provider, minimize feelings of hostility, and potentially aid in the recovery of the patient, their family, the physician, and other care providers.4
Disclosure is difficult, yet essential. Remember, early intervention and honest, open communication are key to maintaining a successful doctor-patient relationship. Studies show that if you are forthright with the patient from the beginning you can save the doctor-patient relationship, benefiting all who are involved.
A CAP Cares team member is ready to provide assistance from the moment the adverse event is recognized. Please call the CAP Hotline at (800) 252-0555 for expert guidance from an experienced Senior Risk Management and Patient Safety Specialist.
Rikki Valade is a Senior Risk Management and Patient Safety Specialist for CAP. Questions or comments related to this article should be directed to RValade@CAPphysicians.com.
References:
1California Medical Association (2021), California Physician Legal Handbook; Physician-Patient Communication, Section 3502 (pg 1).
2Gallagher TH, Waterman AD, Ebers AG, Fraser VJ, and Levinson W. “Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors.” JAMA. 2003; 289: 1001–1007. https://pubmed.ncbi.nlm.nih.gov/12597752/
3ECRI Institute. Disclosure of unanticipated outcomes. Health Syst Risk Manage 2018 May 7. https://www.ecri.org/components/HRC/Pages/IncRep5.aspx
4Saitta, N. & Hodge, S. (2012). Efficacy of a Physician's Words of Empathy: An Overview of State Apology Laws. Journal of Osteopathic Medicine, 112(5), 302-306. https://doi.org/10.7556/jaoa.2012.112.5.302
https://www.degruyter.com/document/doi/10.7556/jaoa.2012.112.5.302/html
5California Legislative Information; Evidence Code 1160a
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=EVID§ionNum=1160