Medical Errors: If Guilty, Fess Up, Experts Say

December 6, 2011

CHICAGO - If you make a mistake, should you tell the patient or does that open you up to a malpractice suit? The rules seem to be changing – a little – according to a malpractice and medical error panel discussion at RSNA 2011.

CHICAGO - The woman and her husband sat in silence. A surgeon had recently biopsied her breast lump and found cancer.

Joseph Tasjian, MD, of St. Paul Radiology, cleared his throat. The lump had shown up on a mammogram two years before. But in 2009, the films had been displayed in reverse order, deceiving Tasjian into concluding the lump had been shrinking. It was clear-cut medical error. The woman before him has lost two years of treatment – and, possibly, her chances of beating the disease, because of it.

What should he say?

Fortunately for Tasjian and the couple he uncomfortably addressed, this was a simulation. The woman and her agitated husband were actors. Tasjian had volunteered to play this role for an audience at an RSNA 2011 session on the topic of disclosing medical error in radiology.

Tasjian did what malpractice lawyers advise against. He apologized.

“When I looked at your mammograms, I made an error,” he told the woman and the man playing her husband.

It’s the right thing to do, for one, Tasjian said after the vignette wound down. Plus, he said, “You’ve got an obvious malpractice case. You can’t do any worse.”

The point, in a case like this, is to help the patient understand that the two-year delay in diagnosis isn’t necessarily a death sentence, he added.

Despite concerns among radiologists that range from lawsuits to the loss of professional standing, Tasjian’s take on disclosure is increasingly mainstream, said David M. Browning, senior scholar at the Institute for Professionalism in Medical Practice in Boston.

“We are seeing a lot of insurers strongly supportive of this,” Browning said. “When there’s a clear-cut error, early disclosure is beneficial to the legal process. It’s not a silver bullet, but I do think insurers are coming along.”

Still, added Thomas Gallagher, MD, a general internist at the University of Washington with a research focus in patient disclosure, the notion of disclosing errors is much more accepted than the actual practice of disclosure. There are a few reasons for this “disclosure gap” to narrow, he said.

First, 2007-2009 data from COPIC, a Colorado malpractice insurer, showed that, while physicians believe they’re doing a good job disclosing medical errors, patients don’t generally feel that way, Gallagher said.

Second, he said, hospitals and other healthcare organizations are beginning to use quality-improvement tools to improve disclosure processes. The concern that bringing up disclosure will spark patient awareness of malpractice suits – and trigger more of them – appears unfounded, the COPIC study found.

Third, institutions are tying disclosure to patient compensation. One approach is to pay out-of-pocket expenses regardless of fault, Gallagher said. Another is an “early settlement model,” in which, after the disclosure of an error, the institution reaches out and tries to make an early and full offer to the patient. The University of Michigan does this, Gallagher said. There, legal expenses and claims have been cut in half; malpractice costs have dropped and time to settlement shortened, he said.

“Most of the benefit is not in the claims process itself, but in an improving culture of openness and transparency,” Gallagher said.

Admitting errors should not be done haphazardly, though, Gallagher and the other panelists agreed. “Guidelines for Disclosure after an Adverse Event,” by the Institute for Professionalism in Medical Practice and CRICO/RMF, the Harvard system’s malpractice insurance program, is one place to start.

An individual may be the one admitting to a medical error, but the effects reverberate across an organization. Proper disclosure requires policies, that procedures and support mechanisms are in place, Gallagher said. Many institutions employ “disclosure coaches” to provide just-in-time advice with disclosure, “so at 3 a.m., you can pick up the phone and they’ll help you with the disclosure process.”

Constance Lehman, MD, PhD, director of cancer care with the Seattle Cancer Care Alliance, said showing empathy and thinking about the patient’s experience is vital in these sorts of difficult conversations. Lehman said when she talks with a woman concerned with a delayed diagnosis, sometimes it helps to subtly guide the discussion, asking things like, “If I were you, this is what I’d be worried about. Is this what’s worrying you?”