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Must you disclose mistakes made by other physicians?

This is the 30th in a series of case studies with commentaries by ACP's Ethics and Human Rights Committee and the Center for Ethics and Professionalism. The series uses hypothetical examples to elaborate on controversial or subtle aspects of issues not addressed in detail in the College's "Ethics Manual" or other position statements.

From the November ACP Observer, copyright 2003 by the American College of Physicians.

Case history

Dr. Gray was definitely feeling the effects of his partner's vacation. A general internist, Dr. Gray practices with three other physicians, all of whom are close friends. One of the partners, Dr. Leavitt, had recently taken a three-month sabbatical to take care of some business in his home state, and Dr. Gray was caring for most of his patients. He felt fortunate, at least, that Dr. Leavitt generally kept good records.

The first patient Dr. Gray saw this particular morning was Mr. Karnofsky, a 60-year-old retired accountant. Mr. Karnofsky had been seeing Dr. Leavitt for a number of years, and he had been quite healthy until the previous year, when he'd begun to "feel his age."

Today, however, he came in wheezing and coughing, and he complained that he'd had a case of bronchitis he hadn't been able to shake for over a month. He'd also noticed a little blood in his sputum and had begun to lose weight, but he thought it was probably because the cough made him a little nauseous. Dr. Gray was concerned, and he sent the patient downstairs for an X-ray.

Later in the morning, the radiologist called Dr. Gray and reported that the X-ray looked like cancer. The radiologist then asked if the patient had refused the follow-up X-rays that had been recommended the previous year.

Puzzled, Dr. Gray replied that the patient was new to him, but that there were no notes in the chart of any abnormalities. The radiologist explained that his colleagues had spotted a lung nodule in the same lung where the cancer was now located about 18 months ago. The clinical information given at that time had stated, "Pt. with fever/cough, r/o infiltrate."

Dr. Gray thanked the radiologist and picked up Mr. Karnofsky's chart. Sure enough, he found a note from 18 months before about the fever and cough and a follow-up note indicating that a course of antibiotics had taken care of the complaints. No mention was made of the abnormal chest X-ray.

In the chart's radiology section, however, Dr. Gray found the report of the faint nodule with the recommendation for repeat films in a few months. Apparently, his partner had overlooked this report.

A biopsy confirmed lung cancer, and a CT scan revealed that the disease had spread to the mediastinum. Dr. Gray had to conclude that early detection may have made a difference.

Now he had to tell this gentleman who he'd seen only once that he had a terminal condition. Mr. Karnofsky said he was surprised that the cancer had grown so fast. After all, he explained, he had just had an X-ray about a year and a half ago that didn't show anything.

Dr. Gray didn't know what to tell the patient about that X-ray. In fact, he debated whether to say anything about it at all.

Dr. Leavitt was his friend and an excellent physician, and anyone could make a mistake. On the other hand, this patient now had a terminal condition that might have been curable if followed up sooner.

"Am I obligated to reveal someone else's mistake if no one asks directly?" Dr. Gray wondered. And if he said nothing, would he be liable for withholding information if Mr. Karnofsky somehow found out about the previous X-ray?

Commentary

Disclosing errors to patients presents physicians with a situation where the principle is clear but the practice is difficult.

The AMA's "Code of Medical Ethics" is fairly clear about physicians' obligation: "Situations occasionally occur in which a patient experiences significant medical complications that may have resulted from the physician's mistake or judgment. In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred." (1)

ACP's "Ethics Manual" states that physicians should disclose to patients information about procedural or judgment errors made during care, as long as such information is material to the patient's well-being. It goes on to say that errors do not necessarily imply negligent or unethical behavior, but failure to disclose them may. (2) Therefore, there is no ambiguity that physicians are obligated to disclose the information that Dr. Gray has discovered.

While physicians may be ethically obligated to disclose errors, pressures from society and the medical profession make it very difficult for physicians to rush to disclose. In one recent study, only about one-third of patients who had some experience with a medical error said that a health professional involved in the incident disclosed the error or apologized. (3)

In part because physicians receive little to no training in discussing errors, admitting errors is difficult. (4) Most physicians have trained in a culture that supports "shame-and-blame" approaches to medical errors.

One study, for example, demonstrated that when housestaff could no longer deny or discount a mistake, they were plagued by profound doubts and guilt. For many, "the case was never closed," even when they finished their training. (5)

Shame, fears about blame and worries about legal liability also play a role in the under-reporting of medical errors. Most physicians have trained—and some continue to train—in poor working conditions that include heavy workloads, inadequate supervision and poor communication. All those factors contribute to medical mistakes.

Dr. Gray asks, "Am I obligated to reveal someone else's mistake if no one asks directly? And am I liable if I don't?" Because this mistake falls in the category of a major error, Dr. Gray needs to inform the patient of the abnormal chest X-ray done 18 months ago.

Here are some issues Dr. Gray needs to consider as he works through a difficult situation:

  • Disclosure. Given the nature of the patient's illness, Dr. Gray needs to disclose his partner's mistake expeditiously. As a courtesy, Dr. Gray should first tell Dr. Leavitt about the error and give his partner the option of informing the patient. If he cannot reach his partner (who is on an extended sabbatical), or if his partner does not wish to inform the patient, then it is Dr. Gray's responsibility to do so. The patient has both an ethical and a legal right to the information.

    It is possible that if his physician had noted the lesion earlier, the patient could have received treatment that may have cured the cancer or extended the patient's life. That will never be known.

    The patient should be given a follow-up appointment in one or two days and asked to have a family member accompany him. The patient now has many decisions to make about his future treatment and life plans, and he needs to be well-informed to make those decisions.

    Communicating quickly and honestly with the patient in this case may help to maintain trust in the relationship, dispel any uncertainty or fear, and promote patient satisfaction. Timeliness, honesty and a sincere apology may also help prevent the possibility of a malpractice lawsuit.

  • Office procedures. Dr. Gray's practice should also take this opportunity to review tracking and notification systems that clearly need to be improved. The radiology report was filed in the patient's chart without having been read by a physician—and without the patient being told of the results.

    Office procedures must be changed to prevent such errors in the future. The practice should monitor its tracking and notification systems to pinpoint areas where changes are needed. All radiology and laboratory reports should be signed and dated by the physician, and patients should receive a note informing them of all test results.

    The 1999 Institute of Medicine report, "To Err is Human," focused on medical errors and patient safety. The report concluded that up to 98,000 individuals die each year in hospitals as the result of preventable medical errors.

    The report also concluded, however, that most medical errors are systems-related and cannot be attributed to individual negligence or misconduct. (6) We therefore need to move away from a culture that blames individuals to one where systems of health care delivery are improved.

  • Patient trust and legal risk. Physicians may hesitate to tell the truth because of concerns about the possibility of malpractice lawsuits—which in this case are quite real—and fears about maintaining liability insurance. (It would be appropriate for Dr. Leavitt to notify his liability carrier of the mistake.)

    While risk management experts or legal counsel may caution physicians against admitting errors, most patients want their doctors to tell them the truth. In one study, 98% of patients said they wanted their physician to acknowledge even minor errors. (7)

    Researchers found that patients were significantly more likely to consider litigation if the physician did not disclose the error. They concluded that open communications and telling the truth can defuse a patient's resentment and reduce the risk of legal action. Little if any empirical evidence supports the idea that telling patients the truth is in some way harmful to them.

    In any event, physicians' ethical responsibility to tell the truth always trumps any concerns they have about legal action. Physicians must be aware that patients who are not told the truth but discover an error or other problem later may experience a loss of trust in the doctor-patient relationship, a factor that is an important part of the healing process.

    In addition, physicians who decide not to disclose an error must bear the burden of proof and be prepared to defend their decision before others involved in the patient's care, as well as before their medical colleagues and quite possibly the legal community.

  • Emotional fallout. For physicians, disclosing errors—their own or someone else's—can be very difficult emotionally. After they have made a mistake, physicians often report experiencing panic, guilt, embarrassment and humiliation, as well as feelings of inadequacy and isolation. (8) Having the mistake discovered by a colleague may compound these feelings.

    If physicians ignore these emotional reactions, they may have even more problems dealing with the aftermath of a major error.

    Discussing feelings with colleagues, friends and family may help. Physicians may also need to consider professional counseling to help work through complex emotions.

    Truth telling in medicine will continue to be an ethical duty. However, if we focus more on how we can address systems to prevent errors, physicians may face fewer errors and find those easier to disclose.

Acknowledgment: The Ethics and Human Rights Committee would like to thank Vincent E. Herrin, ACP Member, author of the case history, and Michelina Fato, FACP, author of the commentary.

References

1. AMA Council on Ethical and Judicial Affairs. Code of Medical Ethics: Current Opinions with Annotations. Chicago, Ill: AMA; 1997;sect 8.12:125.

2. American College of Physicians. American College of Physicians Ethics Manual. Fourth edition. Ann Intern Medicine. 1998; 128:576-594.

3. Blendon R, DesRoches C, Brodie M, Benson J, Rosen A, Schneider E, et al. View of practicing physicians and the public on medical errors. NEJM. 2002; 347:1933-1940.

4. Leape LL, Woods DD, Hatlie MJ, Kizer KW, Schroeder SA, Lundberg GD. Promoting patient safety by preventing medical error. JAMA. 1998; 280:1444-1447.

5. Mizrahi T. Managing medical mistakes: ideology, insularity and accountability among internists-in-training. Soc Sci Med 1984; 19:135-146.

6. To Err is Human: Building a Safer Health System. Washington DC: Institute of Medicine, National Academy Press; 1999.

7. Witman AB, Park DM, Hardin SB. How do patients want physicians to handle mistakes? Arch Intern Med. 1996 Dec 9-23;156 (22):2565-9.

8. Christensen JF, Levinson W, Dunn PM. The heart of darkness: the impact of perceived mistakes on physicians. J Gen Intern Med. 1992; 7:424-31.

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