The Risk Manager s Role in Disclosure of Medical Error: Seeing Ourselves as Others See Us

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1 FALL 2001 The Risk Manager s Role in Disclosure of Medical Error: Seeing Ourselves as Others See Us 19 By Grena G. Porto, RN, MS, CPHRM, DFASHRM Senior Director, Clinical Consulting VHA, Inc., Berwyn, PA Introduction The recently enacted JCAHO patient safety standards 1 have created new urgency for healthcare providers to develop processes not only for the prevention, detection and remediation of errors, but also for informing patients about errors when they occur. Healthcare risk managers have long played an important role in the handling of patient injuries due to error, and they now find themselves at the center of efforts to develop formal written disclosure processes and policies. While risk managers may have both the knowledge and the experience to deal with this new challenge effectively, they may face some resistance from providers who believe that risk managers have not historically supported full and honest disclosure. Such providers view risk managers as ill-suited to lead these new efforts, and these perceptions can hamper the success of the disclosure program as well as the risk manager. This article examines some of the perceptions that clinicians have about risk managers attitudes toward disclosure of medical errors to patients. The article also presents the results of a survey of risk managers about their own attitudes toward disclosure. By being aware of the disparity between how they see themselves and how others see them as it relates to disclosure of medical error, risk managers can take definitive steps to correct misperceptions, thereby enhancing the probability of success of any disclosure initiative they undertake. Risk Managers may face some resistance from providers who believe that risk managers have not historically supported full and honest disclosure. Physician Perceptions of Risk Managers Approach to Disclosure of Error Medical literature contains many references to the role of risk management in driving physicians decisions about disclosure of medical error. Risk managers are not seen as advocates of disclosure, and therefore of limited value in assisting physicians with this difficult task. For example, Finkelstein et al., observe that In some hospitals, risk management does not encourage the physician or hospital

2 20 JOURNAL OF HEALTHCARE RISK MANAGEMENT to accept responsibility. 2 In another article, the author notes Our perspective differs radically from the risk management approach that is commonly espoused. Although risk managers routinely encourage physicians to maintain good communication with patients in order to prevent a lawsuit, when an adverse event occurs and a mistake has been made, physicians are usually admonished to admit nothing and talk to no one. 3 Some authors find that legal and risk management considerations may be at odds with ethical duty to disclose errors, and that physicians must balance competing interests and priorities while not compromising their values. Other writers are considerably more skeptical about risk management approaches to disclosure of medical error. Woods writes that Traditionally, malpractice insurance companies and risk management people in hospitals have advised doctors to keep quiet when a mistake occurs. 4 In an account of one family s experience, Werth wrote Walter Reed did what most American medical centers do when confronted with the irretrievable collapse of a patient. It assigned a committee of physicians and risk managers to search for causes, while trying to protect its reputation. 5 Another author notes that doctors feel constrained against apologizing by hospital risk managers. The cues we get from risk managers is never to admit a mistake; always paper them over. 6 Sweet notes that while physicians may seek guidance from risk management in dealing with errors, they find that this is of little help in resolving the problem. 7 Many authors note that risk managers apparent reticence about disclosure may be rooted in legitimate concerns about the handling of the disclosure itself. For example, O Connell writes that Risk managers often fear that clinicians will accept responsibility and blame unnecessarily, making it harder to defend them if a claim is later made. Conversely, they worry that physicians will behave defensively with the patient and family and add to their ire and motivation to retaliate. 8 Another physician writes Risk management and legal counsel may caution against hastily admitting responsibility in an effort to prevent or limit a malpractice suit. 9 Some authors find that legal and risk management considerations may be at odds with ethical duty to disclose errors, and that physicians must balance competing interests and priorities while not compromising their values. 10,11 They note that physicians ethical responsibilities supersede risk management considerations. Many authors, however, continue to support the involvement of risk managers in disclosure of medical error Risk Managers Attitudes Toward Disclosure In 2000, VHA sponsored a study that surveyed more than 3,300 risk managers about their attitudes toward disclosure 15. About 650 risk managers, or 20% of those who were sent surveys, responded. The survey presented five scenarios describing errors in treatment. Injuries resulting from the errors ranged from death to the need for increased testing. For each scenario, respondents were asked to select the statement that best represented what they themselves believe the patient or family should be told and their rationale for this. Respondents were also asked to choose the statement that best represents what their institution would likely tell the patient, as well as the rationale.

3 FALL Table 1 Table 1 presents a scenario from the survey with the range of choices from which respondents were asked to select. For the scenario described in table 1, 61% of respondents believed that there should be full disclosure of the error (responses #4 and #5) and 12% believed there should be no disclosure (responses #1-3). However, only 39% believed that their organizations would opt for full disclosure. The responses for this scenario are illustrated in Figure 1 on page 24. In four of the five scenarios, the majority of respondents favored disclosure. The rationale most often selected by respondents was that healthcare providers have a duty to disclose mistakes to patients whether or not there was injury, even if doing so will increase liability. In these four scenarios, respondents believed that their organizations would be less likely to support disclosure.

4 22 JOURNAL OF HEALTHCARE RISK MANAGEMENT Respondents favored full disclosure most in incidents in which there was minor or no injury and they believe their organizations would be most supportive of disclosure in those scenarios as well. Two such scenarios were presented in the survey. In one, a pediatric patient wandered away from the unit but was later found unharmed. In the other scenario, a patient received a Heparin overdose but did not suffer While risk managers personally support disclosure of medical error to patients, they are constrained by organizational cultures that are less supportive of disclosure. any complications and required only increased monitoring. Full disclosure was favored by 84% of respondents for the pediatric scenario, and by 90% of respondents for the Heparin scenario. 72% and 74% of respondents believed that their organizations would favor disclosure in these two scenarios respectively. The scenario for which respondents least favored full disclosure was one in which the cause and effect relationship between the error and the injury was uncertain. In that scenario, an emergency department patient diagnosed with a CVA received an overdose of a drug known to cause respiratory suppression. The patient later suffered a cardiopulmonary arrest during a CT scan and died. The mistake was discovered after the patient s death. Only 19% of respondents favored telling the family that the patient had received an overdose which probably or may have contributed to his death. 37% favored telling the family that the patient had received a drug overdose and it is unknown whether this contributed to his death, and 5% believed that the drug overdose should not be mentioned at all. Interestingly, this is the only scenario for which the respondent s predictions about the organization s likelihood to disclose the mistake exceeded their own. In this scenario, 44% of respondents believed that their organizations would disclose that the overdose probably or may have contributed to the death.

5 FALL The results of this survey suggest that while risk managers personally support disclosure of medical error to patients, they are constrained by organizational cultures that are less supportive of disclosure. It appears that risk managers do not have the authority to determine the degree of disclosure that will be made in specific situations. Respondents cited fear of litigation and fear of adverse publicity as the two greatest barriers to disclosure in their organizations. Thus, any perceived lack of support for disclosure on the part of risk managers is more likely a reflection of the managerial philosophy or culture of the organization, rather than of the risk manager s own beliefs. Conclusion Risk managers support of disclosure is consistent with that of other managers. Several authors have written of the duty of managers to inform patients of mistakes, even if it will cause harm to the organization. 16,17 The results of this survey show that risk managers share this belief. However, many physicians perceive that risk managers are not in favor of disclosure of error to patients, and therefore they do not see risk managers as valuable resources when faced with disclosure decisions. This perception can seriously hamper the effectiveness of risk managers efforts to develop and implement policies and procedures for disclosure of medical errors. Risk managers must be aware of these perceptions and must make concerted efforts to educate physicians about the role of risk management in management of medical errors, including disclosure. With the increased attention this issue is currently receiving, the time seems right to correct misperceptions and foster a collaborative approach with other clinicians to disclosure of medical errors. 1. See 2. Finkelstein D., Wu A.W., et al. When a physician harms a patient by medical error: ethical, legal and risk management considerations. Journal of Clinical Ethics. 1997; 8(4): Robin, M.R., Brian, D.D., et al. Truthtelling, apology and medical mistakes. The Medical Journal of Allina, 1998; 7(3): Woods, M. Physician apologies could prevent lawsuits. Scripps Howard News Service, November 22, Werth, B. A marine s private war. The New Yorker. December 18, Lowes, R.L. Make a bonehead mistake? Apologize. Medical Economics :94, 97, Sweet, M.P., Bernat, J.L. A study of the ethical duty of physicians to disclose errors. The Journal of Clinical Ethics (4): O Connell, D., Keller, V.F. Communication: a risk management tool. JCOM (1): Brazeau, C. Disclosing the truth about a medical error. American Family Physician (3): Rosner, F., Berger, J.T., et al. Disclosure and prevention of medical errors. Archives of Internal Medicine : Finkelstein, D., Wu, A.W., et al. When a physician harms a patient by medical error: ethical, legal and risk management considerations. Journal of Clinical Ethics (4): Wu, A.W. To tell the truth. Ethical and practical issues in disclosing medical mistakes to patients. Journal of General Internal Medicine :

6 24 JOURNAL OF HEALTHCARE RISK MANAGEMENT 13. O Connell, D., Keller, V.F. Communication: a risk management tool. JCOM (1): Singer, P.A., Wu, A.W., et al. An ethical dilemma: medical errors and medical culture. BMJ : The study was developed and conducted by Kathleen Ruroede, RN, Ph.D., Grena Porto, RN, MS, CPHRM, Geri Amori, Ph.D., Nancy Wilson, BSN, MD, MPH, Martin Hatlie, JD and Christopher Cassirer, Sc.D., MPH, and was funded entirely by VHA. 16. Nowicki, M., Chaku, M. Do healthcare managers have an ethical duty to admit mistakes? Healthcare Financial Management : Summers J. A duty to report patient care mistakes? Changing roles for healthcare managers. Journal of Healthcare Materiel Management (3):64-66.

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