Insurance Update: Disclosing Unanticipated Outcomes and Medical Errors

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Insurance Update: Disclosing Unanticipated Outcomes and Medical Errors

By Sandra Strickland, RN, MSN, LHRM, CPHRM
Risk Management Consultant

Physicians may be uncertain of how to proceed when faced with the dilemma of disclosing an unexpected outcome to a patient. Unfortunately, people often mistakenly equate unanticipated outcomes with medical error. However, more frequently, the unanticipated outcome is a consequence of the patient's medical condition or an inherent complication associated with the treatment. The current litigious environment may cause the physician to be reluctant not only to discuss unanticipated outcomes, but especially medical errors. In fact, it is often this reluctance and failure to communicate that forces patients or family members to seek legal action in order to obtain answers to their questions.

When a patient experiences an unexpected outcome or is harmed by a medical error, the healthcare team may fail to acknowledge the event and refuse to discuss it. They are fearful that furnishing information about the event is tantamount to admitting liability. Absent communication and answers to their questions, the patient and family become increasingly suspicious and distraught until the distress eventually turns to rage. Often, it is this rage that forces the patient to retain an attorney to supply the missing answers and seek compensation.

Studies have shown that patients and family members are less likely to sue when information is provided and an apology offered in response to a negative outcome. Increased communications have been shown to enhance the physician-patient relationship in these situations. In addition to the ethical duty to inform patients of negative outcomes and offer appropriate treatment options, Florida law (FS 456.0575) requires healthcare providers to disclose adverse outcomes that result in serious harm.

Important points to remember when disclosing a medical error or adverse outcome are:

Prepare for the discussion. Consider having support persons on hand. Arrange for a private setting to conduct the discussion.
Provide a prompt, factual description of events. Don't speculate as to the cause if the cause has not been determined. But, do not delay initiating communication until all the facts are known. Inform the patient and family they will be advised as soon as more information becomes available and then follow-up.
A sincere apology or statement of regret that the patient experienced a negative outcome is appropriate. Do not assign or assume guilt or blame.
Discuss the effect the event may have on the immediate and long-term status of the patient.
Discuss the interventions that have been initiated and any future interventions that may be indicated.
Conduct an evaluation of the event. Relay to the family that a full evaluation of the event will be made and that they will be advised of the outcome of the investigation as appropriate.
Provide ample time and opportunity for the patient's and/or family's questions and concerns to be addressed.
Maintain continued communications as facts become evident.
Document the discussion, including the date and time of disclosure, who was present, a summary of what was discussed, and what questions were raised.

Patients who have been engaged in a thorough informed consent discussion are less likely to become suspicious or confrontational when faced with an adverse outcome. Prior informed consent may make the disclosure process less fearful for the physician as well, since it sets the foundation for discussion.

The three primary goals of appropriate disclosure are to avoid the conflict of an adversarial approach that puts patients and attorneys against healthcare providers in lengthy litigation, to improve physician-patient communications, and to improve the delivery of medical care and patient safety by openly evaluating and addressing unanticipated outcomes.

Information in this article does not establish a standard of care, nor is it a substitute for legal advice. The information and suggestions contained here are generalized and may not apply to all practice situations. FPIC recommends you obtain legal advice from a qualified attorney for a more specific application to your practice. This information should be used as a reference guide only.