Although there is the fear of increasing claims and lawsuits, increasing malpractice insurance, and increasing jury awards, there is no clear evidence of the impact on litigation. There has been no determination that lawsuits have increased. On the contrary it can be argued that failure to reveal medical errors “…could impair patient trust and satisfaction and increase the chances of a malpractice suit” (6). “Nearly 90 percent of jurors polled felt that there should be disclosure when there is a medical error or mistake” (4). So if disclosure is an expectation of jurors, this should give added credibility to an attending physician. There are anecdotal reports that verdict awards may be limited because of disclosure (4). In addition, the claim of concealment/“a cover up” and the request for punitive damages could be nullified by disclosure.
When disclosure is triggered by an outcome, prompt disclosure is encouraged but only after considering the following steps:
Steps:
- If your facility has a disclosure policy, become familiar with it. Be certain what is considered an “unexpected outcome.”
- Consult with risk management or your professional liability carrier.
- Carefully review the known facts and anticipate what care will be required by the patient.
- Decide who should do the disclosure.
- Decide who should be present.
- The content of the conversation should be prepared being careful not to place blame or admit liability.
- If the unexpected outcome is a recognized complication of treatment, this should be pointed out, including the fact that it was covered during the process of obtaining the patient’s consent.
- Disclosure should conclude with an offer to be available for further discussion. Do not avoid the patient or family.
- Documentation should conform to the policy of the facility or principles of risk management.
To make the theoretical more practical consider the following clinical scenarios.
- A 74 year old man weighing 63 Kg. with multiple co-morbidities (insulin dependent diabetes mellitus, congestive heart failure, coronary artery disease) underwent an anterior cervical laminectomy. His pain was difficult to control in the recovery room. Despite several doses of intravenous (IV) fentanyl, the pain level remained at 4. Over the next 6 ½ hours he received additional fentanyl, Percocet and Tylenol #3 without significant relief. The patient’s respiration rate and blood pressure remained stable. The nurse called the resident-physician and suggested Dilaudid because of the patient’s history of Demerol and morphine intolerance. An order was given for Dilaudid 2-4 mg. IV every 2‑3 hours as needed. Because of the uncontrolled pain the nurse gave 4 mg. Four hours later the patient was found pulseless and resuscitation was unsuccessful. After a discussion with the Risk Management staff, the surgeon disclosed to the family that the patient had received a large dose of narcotic but that he did not know if this contributed to the patient’s death. The family refused an autopsy initially but changed their decision with this added information.
- An infant with a congenital hypoplastic left heart syndrome underwent a modified Norwood procedure. The infant was doing well until a TPN programming error occurred. The baby received a 24 hour volume of TPN over a 2 hour period. There were symptoms of tamponade and the heart rate dropped from 140 to 43. The team opened the chest and resuscitated the infant. The TPN overload was not detected until the grossly abnormal laboratory values were reviewed. Because many hypoplastic-heart babies also have neurological problems, it will be impossible to determine the origin if any deficits become apparent. The mother was given the facts surrounding the event. The mother responded with support for the nurse in that she knew the nurse cared deeply about her child and then expressed that mistakes happen.
- A 55 year old man with a large pericardial effusion after a coronary artery bypass graft became hypotensive and was transferred to an intensive care unit. Dobutamine 7.5 mcg/kg/minute was ordered. However, dobutamine 18 mcg/kg/minute was administered. The patient did well and was discharged. The medication error was discovered on an audit. There was no indication of an associated injury. The Risk Management department recommended not disclosing to the patient. However, it was suggested that if the physician felt an obligation to inform the patient of the discrepancy, the physician should discuss the facts with a medical ethicist to work through his concerns which were separate from the legal ones.