Disclosing medical errors, adverse events to patients

Why disclose a medical error to a patient?

Most experts agree that disclosing a medical error, even a near-miss error that did not cause patient harm, is an ethical imperative. However, there are also several practical reasons for doing so.

Overall, disclosure of medical errors can make patients feel better about the care they received, despite the harm they might have experienced. Open and transparent communication about what happened and how can be comforting to patients and help build trust. For this reason, disclosure of medical errors can actually reduce the risk of medical malpractice lawsuits.

Some data shows that patients and/or their families file medical malpractice lawsuits because they sense that a detail regarding their care is being hidden, although it has been a while since researchers explored this area.

According to one 2003 study, researchers found that patients and families who file medical malpractice lawsuits are seeking a clear explanation of what happened. When patients and families perceive that a provider is withholding something, they are more likely to file a suit.

"Paradoxically, error disclosure may reduce overall malpractice costs, probably because patients often sue when they feel their physicians are avoiding them or hiding information," according to a viewpoint published in the AMA Journal of Ethics.

Conversely, hospital programs for fully disclosing medical errors can actually reduce the rate of malpractice suits.

For example, at the University of Michigan Health System, an early adopter of full transparency programs, saw a decline in medical malpractice lawsuits once their providers were instructed to fully disclose mistakes to patients, health system researchers wrote in a seminal 2010 Annals of Internal Medicine study.

How to disclose medical errors to patients

Healthcare providers might not know where to start when disclosing a medical error to a patient. In addition to the quality reporting required for documenting adverse patient safety events and medical errors, clinicians must also contend with the challenges of delivering bad news to a patient and admitting to an error or mistake.

Gather basic facts

Healthcare providers should start by gathering the basic facts of the adverse event, according to the AMA viewpoint. This will help them recount the event clearly and objectively for the patient and any family members.

Prepare for the conversation

Healthcare providers should also consider how they will discuss the medical error with the patient and their family members, which will require some preparation.

For example, the AMA article recommends clinicians consider whether they'd like to have a colleague or a supervisor present for the conversation. Often, healthcare providers feel angry, worried or defensive about a medical error. In these cases, it can be helpful to have a colleague, supervisor or someone else who can speak on behalf of the hospital present.

The University of Michigan Health System encourages its providers to consider the setting for these grave discussions. Providers should find a quiet, private room the meet with patients and family members and ensure they have turned off their pagers and cell phones.

Considerations for disclosing the medical error

Most experts agree that the best way to disclose a medical error is with clear, concise communication and empathy.

According to the AMA, providers should outline what happened and how. They should stick to the facts of the adverse event and avoid conjecture while also considering patient health literacy levels.

The University of Michigan Health System suggests providers describe the error, when and where it occurred and the consequences of the harm. They should apologize and outline the actions that will be taken to mitigate the harm.

Additionally, they should discuss the actions that the organization will take to prevent this error from happening again, who will manage the patient's care moving forward and identify the system elements that contributed to the error.

The Agency for Healthcare Research and Quality (AHRQ) breaks down the key components of a medical error disclosure into four parts:

• Disclosure of all harmful errors.
• Explanation about how or why the error occurred.
• How the harm will be minimized.
• How the physician or hospital will prevent that error in the future.

Central to all of this is clinician empathy, both AMA and the University of Michigan Health System state. Providers should affirm a patient's feelings of worry or anger while explaining that the adverse event was not expected or intended.

More specifically, providers should actively use the words "error" or "mistake" and "I'm sorry," the health system recommends.

Health systems have their own part to play.

According to AHRQ, some clinicians don't fully disclose medical errors because they haven't received training about how to do this. Including training seminars about how to disclose medical errors could help improve the overall culture of patient safety within an organization.

To that point, organizations must reflect on their overall culture of safety. As more organizations understand adverse events to be systems failures, they can build psychological safety that promotes transparency about and reporting of medical errors.

Although experts agree providers and health systems should disclose medical errors with empathy for patients and their family members, there is still some gray area around explicitly apologizing. The University of Michigan Health System asserts providers should apologize when discussing a medical error with a patient. However, other industry experts have cautioned against such practice, lest the apology be used as an admission of guilt in a medical malpractice lawsuit.

Generally speaking, apologies can be therapeutic for patients who have experienced an adverse safety event. However, it would be beneficial for healthcare providers to understand the legal landscape of so-called "I'm sorry" laws and how they might affect their organization.

Understanding apology laws and medical malpractice

Apology laws, sometimes referred to as "I'm sorry" laws, are designed to protect healthcare providers from having their expressions of condolences or remorse used as admissions of wrongdoing or guilt in medical liability or malpractice cases, according to the National Council of State Legislatures.

If providers fear their apology will be used as an admission of guilt, they might be less likely to issue one to a patient who has experienced harm from a medical error. Some experts believe that an apology is key to repairing the patient experience and mitigating the harm, giving credence to these laws.

If the goal is to prevent medical malpractice lawsuits, there's some data that indicates an apology is productive.

In a 2021 report in the Journal of the American Academy of Psychiatry and the Law, researchers pointed to evidence that making providers feel comfortable apologizing to patients after a medical error can reduce the rates of medical malpractice suits, which theoretically are raised to prevent the same mistake from reoccurring.

"An apology, through its acknowledgment of fault, expression of remorse, offer to repair damages, and promise of behavioral change, could assuage many of these patient concerns, thereby reducing the likelihood that patients will file malpractice claims," the researchers wrote. "Many patients explicitly identify a lack of apology as a reason they chose to pursue a malpractice suit.

But are these laws effective? Not exactly, the researchers said.

There aren't many studies assessing the efficacy of apology laws, but the ones that do exist indicate that the semantics of the statutes limit their impact. Specifically, the wide adoption of partial apology laws -- laws that only protect expressions of regret and not disclosure of error -- haven't moved the needle on medical malpractice lawsuits.

It would be prudent for hospitals and health systems, plus the clinicians who work in them, to become familiar with their state's apology laws. In doing so, hospital legal counsel can advise healthcare providers about how best to disclose medical errors and adverse events to patients.

That said, more discussion about the therapeutic benefits of an empathetic conversation about a medical error (meaning, a conversation that includes a full apology) might be warranted.

Sara Heath has covered news related to patient engagement and health equity since 2015.