In 1989, I agreed for the first time to serve as an expert witness in a case brought by the family of a terminally ill pregnant patient who had a cesarean section performed against her will in a prominent university teaching hospital. Since then, whether retained as a plaintiff or defense expert, I have been surprised and disturbed by the number and types of cases in which hospitals and other health care facilities have been sued.
Representative cases have involved allegations of negligent credentialing, wrong-site surgery, failure to obtain informed consent, allowing excessive surgical procedures, lack of timely reporting of critical diagnostic results, disregarding advance directives, employment of unqualified staff members, substandard security precautions resulting in harm to patients and staff, alteration of medical records after a clinical error, disclosure of confidential information, and noncompliance with established policies related to the operating room and preventing patient falls.
Other suits were initiated as the result of bad clinical outcomes combined with employees' or physicians' insensitivity and ineffective communication. Patients and families felt their concerns about inattention and non-responsiveness were ignored or trivialized. Alternatively, when the health care provider said it would address a serious problem and inform them why a problem happened, it did not keep its promise.
Since that 1989 lawsuit, I have come to realize that patients often sue hospitals not because errors occur, but because physicians and hospital personnel handle the situation badly.
Reluctance to Admit and Report Errors
In "A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care" (Journal of Patient Safety, September 2013), John James, Ph.D., reports that the number of deaths due to preventable adverse events in hospitals is at least 210,000 and probably more than 400,000 annually. At a time when respected experts such as Harvard's Lucian Leape, M.D., agree with this study, indicating the number of errors is more than twice as high as reported in the Institute of Medicine's landmark publication To Err is Human, we have an ethical imperative to re-examine how we are responding to such errors.
The once traditional response of retreating behind a wall of silence to avoid a lawsuit was never defensible. It is even less so today. Although it is difficult to explain why some institutions still counsel staff not to acknowledge clinical errors, even when the evidence is irrefutable, we know this occurs.
Clinicians often fail to admit and report errors because of denial, guilt or fear of reprisal. But such failures obviously inhibit timely investigations and improvements in patient safety. Furthermore, the likelihood of litigation is increased, not diminished, by a deny-and-defend response.
In 1987, the Lexington (Ky.) VA Medical Center pioneered the "disclosure and offer" risk management strategy, seeking to make patients whole without the need to litigate. Since that time, hundreds of hospitals have saved millions of dollars in malpractice expenses as the result of error disclosure and apology programs.
At least 36 states now have passed legislation that allows apologies to be expressed without fear of litigation. For example, the Ohio law content makes any expression of sympathy or apology by a medical care provider following an unexpected outcome inadmissible in a civil case. According to medical malpractice attorney Andrew Thompson, not only is that apology inadmissible, it more often than not will keep a case from ever being filed.
Minimizing Likelihood of Litigation
Innumerable studies have confirmed that five basic steps have been successful in minimizing the likelihood of litigation following a clinical error. Not surprisingly, they are steps we or members of our family would appreciate and expect if an error affected us.
1. Promptly acknowledge that a mistake has been made. The organization's policy on clinical errors should identify who should disclose the mistake. Typically, the communicator would be the patient's attending physician. But if he or she is not available, the policy should designate another appropriate person.
2. Apologize thoughtfully and candidly. Patients and families understand that caregivers are fallible; they don't understand denial and cover-up, nor should they.
3. Describe how the mistake was made, if known, and when the results of an incident investigation will be available. Too many institutions erroneously decide to communicate only after all the details have been obtained. It is easy to rationalize waiting for a complete report, but patients and families deserve to know even initial findings along with a promise of more information when it becomes available.
4. Discuss what steps are being taken to prevent similar events from occurring. It is not just reasonable, it is imperative that patients and families are assured measures have been implemented to improve patient safety.
5. Offer compensation. Although some will argue this is inappropriate or premature, even conveying an intent to consider some type of payment again demonstrates the institution wants to do what is right.
Establish a comprehensive policy on disclosing clinical errors, educate the staff on how to implement and maintain it effectively, monitor compliance, address problems with noncompliance, and periodically review and revise the policy as needed. The policy should emphasize that the timely reporting of errors without recrimination is encouraged and supported. A just culture does not permit people with organizational power to repress disclosure of errors or to retaliate against those who report them.
Do not overlook the legitimate needs of staff members involved in a clinical error. Depending on an error's magnitude and consequences, nursing assistants, nurses, pharmacists, physicians or others may need personalized assistance to help them cope with their distress.
When an unanticipated adverse outcome occurs, the first point of contact for a patient or family should not be the organization's risk manager. It creates the perception that the hospital's primary interest is to limit liability.
Explore opportunities for obtaining real-time feedback from patients and families about their hospital experience, rather than relying almost exclusively on responses to satisfaction questionnaires. Realize, however, that often patients and family members may be reluctant to report a problem if they believe there is even a remote possibility of being dependent on an employee or physician whose care has been criticized.
The typical indecipherable billing statement and overly aggressive collection efforts alone normally do not generate litigation, but if they follow a preventable adverse event, certainly the likelihood of litigation will be higher. Improvements in both areas are needed for a variety of self-evident reasons.
Become Partners with Patients
As unlikely as it may seem, many patients and family members who have experienced an error or problem at your hospital will welcome the opportunity to work with you to make your facility safer and more patient-centered. They can be major contributors to organizational quality programs, safety committees and patient/family advisory councils if you reach out to them.
Because lawsuits are precipitated most often by anger rather than greed, you can reduce the number of cases (along with the cost, time, emotional distress and potential negative publicity associated with defending a lawsuit) substantially. The goal of every health care organization should be to eliminate clinical errors. When one occurs, however, complying with a comprehensive policy on clinical errors that considers the steps and issues noted will serve the best interests of patients and families as well as the institution and its staff.