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To disclose or not to disclose

An ethics case study: Should you talk about a mistake--and how?

From the January 1996 ACP Observer, copyright 1996 by the American College of Physicians.

  • Previously published ethics case studies are available online.
  • For additional ethics resources, visit the College's Center for Ethics and Professionalism

This is the 15th in a series of case studies with commentaries developed by the ACP Ethics and Human Rights Committee. The series elaborates on controversial or subtle aspects of issues not addressed in detail in the ACP "Ethics Manual" or in other position statements.

Case history

Dr. Howard McGregor's busy internal medicine practice has him concerned. He has contracts with several managed care plans and is now seeing an average of 16 patients per half-day session. As little as three years ago, he was seeing only nine patients per session. Sometimes he wonders if he is adequately following up on tests and procedures.

Today he is seeing Karen Madner, a 53-year-old woman whom he has followed since she was in her late 30s. Ms. Madner has given birth to three children and has since had a tubal ligation. She is very concerned about breast cancer because her mother and sister were both diagnosed with the disease in its advanced stage. Her mother was 48 and her sister 40 when they died of breast cancer.

Although Ms. Madner no longer sees an ob/gyn, Dr. McGregor has continued to follow her for gynecological care. Usually, she receives a Pap smear and a mammogram at her yearly checkup. Her last visit was approximately 16 months ago.

In reviewing the record before Ms. Madner's appointment, Dr. McGregor is shocked to discover the previous mammogram report, prepared 16 months earlier, suggested an abnormality calling for follow-up in four months. The radiologist's note was fairly explicit about the suspicious nature of this lesion and the need for expedient follow-up. Dr. McGregor has no idea how he could have overlooked this report.

He examines Ms. Madner and finds a palpable lump in the area of the abnormality. At this point he is very anxious and irritated. He questions Ms. Madner about her use of breast self-examination, which she says she does regularly. He then suggests she needs a mammogram immediately as well as a referral to a breast surgeon.

"What's going on?" she asks. "I had a normal mammogram last time." Ms. Madner is understandably upset, but Dr. McGregor is so agitated he does a poor job of attending to her emotional concerns.

After Ms. Madner leaves, Dr. McGregor takes time to reflect. He recalls that Ms. Madner is a single mother who works full time to support her two high school-age children. The treatment for breast cancer could significantly affect her ability to continue working. He wonders if she has disability insurance and makes a note to ask her.

Dr. McGregor then calls his senior colleague, Dr. Rendler, for advice. Dr. Rendler is surprised that Dr. McGregor did not have a more engaging discussion with the patient. Dr. Rendler believes that full disclosure of mistakes with patients is the best course. She explains that she has had similar cases in the past and has found that the outcome is the best when one honestly shares one's mistakes with the patient. Informed patients are better able to cope with the disease. They are also less likely to sue for malpractice.

Dr. McGregor considers what to do next.

Commentary

To err is human. No one is immune. But when physicians err, the stakes obviously can be quite high.

The issue here is not how to eliminate error; that is an unobtainable goal. Nevertheless, it clearly influences the culture and worldview of medicine. One physician's view of mistakes: "It is a crime ... There's some anonymous court that's been set up someplace--I mean Osler or God somewhere at Massachusetts General Hospital--and you-ve been convicted and tried at the same time" (1).

Physicians, perhaps by nature, and certainly as a result of their education and training, often strive to attain perfection in the practice of medicine (2, 3). Commenting on this phenomenon, Lucian Leape, MD, has observed: "One result is that physicians, not unlike test pilots, come to view an error as a failure of character--you weren't careful enough, you didn't try hard enough" (3). This sensibility often becomes very pronounced among residents (4).

Perhaps the only people who demand perfection in medicine more than doctors are patients. Patients sometimes have unrealistic expectations about what medicine and their physicians can do for them, and about the possibility of error in the provision of health care. This also influences how physicians handle mistakes. Physicians should keep patients well informed and help patients to have realistic expectations. However, patients can reasonably expect that their physicians will give their care appropriate attention and follow-up. It is the physician's obligation to do so.

Of course, errors should be prevented whenever possible. But some mistakes are inevitable, sometimes due to negligence, sometimes not. And the potential for errors is great in a complicated endeavor such as medicine and in complex settings such as hospitals. The Harvard Study of New York hospitals found that among discharges from a random sample of 51 hospitals, 1% of patients suffered harm as the result of negligence (5). Another study showed intensive care unit patients were subjected to an average of 178 separate "activities" per day each and 1.7 errors per day, 29% of which could be characterized as potentially serious or fatal (3).

Reflecting on this study, Dr. Leape notes that 1.7 errors per day means a 99% proficiency rate. But he notes that 1% error is much greater than that found acceptable in, for example, dangerous industries such as aviation and nuclear power. He concludes that although physicians, nurses and pharmacists "probably are among the most careful professionals in our society," they are not proficient at error prevention because, "they have a great deal of difficulty in dealing with human error when it does occur" (3). It also may not be immediately apparent who was responsible for the mistake, or individuals may deny responsibility (6).

Which brings us to the issue raised by this case: How should physicians deal with error while maintaining ethical obligations to the patient and respecting patient rights?

The third edition of the ACP "Ethics Manual" directs physicians to "... disclose to patients information about procedural or judgment errors made in the course of care, if such information significantly affects the care of the patient" (7). The manual goes on to say that "Errors do not necessarily constitute improper, negligent, or unethical behavior" (7). But failure to disclose a significant error can encompass all three.

It is necessary and important for Dr. McGregor to have a longer discussion with Ms. Madner about the previously overlooked lesion on the mammogram. Ms. Madner has a right to information that significantly affects her care. She also needs to make further decisions about her care and to be well-informed in order to make those decisions and work in partnership with Dr. McGregor. Effective patient-physician communication can dispel uncertainty and fear and enhance healing and patient satisfaction (7). It can also help dispel the anger and confusion that often contribute to filing a malpractice lawsuit.

The threat of legal action is real. Most liability insurers prefer to be notified as soon as possible after the mistake is discovered. Although the physician might hold himself to a standard of perfection, however, the legal system does not. Instead, it requires that the physician practice with reasonable care, that is, as a similarly trained physician would do in similar circumstances.

Apart from potentially preventing legal action, effective communication also can help maintain or restore the trust necessary to a good patient-physician relationship. In this case, Ms. Madner knows or will soon learn that something went awry. This is not an error undetectable to the layperson. Even if it was, the standard for disclosure is not detectability. It is whether or not information about the error will significantly affect the patient's care. It is unethical to say nothing here, and that course of action would undermine or ultimately destroy the relationship.

Dr. McGregor is right to be very concerned about the potential consequences of his mistake and of disclosure. He should give thought to how he will broach the discussion with the patient and what he might say. He might further discuss this with Dr. Rendler, while maintaining patient confidentiality, in preparation for his conversation with Ms. Madner. He will also want to think about changes in his practice or office procedures that will help him avoid such mistakes in the future, for example, a review of his patient load and attention to how lab reports are screened. Acknowledging an error and accepting responsibility for it can be first steps in improvements in quality of care. He should, however, have his discussion with the patient sooner rather than later and her care should not be further delayed.

Dr. McGregor might also benefit from any support Dr. Rendler or another colleague can give him. The emotional impact of a mistake can take its toll on the physician.

"The medical profession simply seems to have no place for its mistakes. There is no permission given to talk about errors, no way of venting emotional responses. Indeed, one would almost think that mistakes are in the same category as sins..." (2).

Physicians should find a place to talk about mistakes and to deal with them and the responses, emotional and otherwise, and learn from them. And then move on. n

Acknowledgments: The Ethics and Human Rights Committee would like to thank Troyen A. Brennan, FACP, JD, MPH, committee member, author of this case history; and Lois Snyder, JD, Ethics and Health Policy Counsel in ACP's Division of Health and Public Policy and Dr. Brennan, authors of the commentary.

References
1. Christensen JF, Levison W and Dunn PM. The heart of darkness: The impact of perceived mistakes on physicians. JGIM. 1992; 7:424-431.
2. Hilfiker D. Facing our mistakes. N Engl J Med. 1984; 310:118-122.
3. Leape LL. Error in medicine. JAMA. 1994; 272:1851-1857.
4. American College of Physicians. When medical residents make mistakes, should they tell attendings and patients? ACP Observer. 1993; 13:1, 8-9.
5. Localio AR, Lawthers AG, Brennan TA, Laird NM, Herbert LE, Peterson LM, et al. Relation between malpractice claims and adverse events due to negligence: Results of the Harvard Medical Practice Study III. N Engl J Med. 1991; 325:245-251.
6. Lo B. Disclosing mistakes. In Lo B, (ed). "Resolving Ethical Dilemmas: A Guide for Clinicians." Baltimore, William & Wilkins, 1995.
7. American College of Physicians Ethics Manual. (third edition). 1992; 117:947-960.

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