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Ethical Dilemmas with Disclosing Medical Errors

Truth-telling after medical error is the theme of this physician-patient interaction. In the U.S., there is broad ethical consensus supporting disclosure of known medical errors, but even so, the physician who must acknowledge a mistake faces a daunting situation. Disclosing medical errors is the theme of this physician-patient interaction resulting in a medical liability lawsuit.

ALLEGATION

Improperly performed procedure

CASE FILE

Four Basic Principles of Medical Ethics

  1. Beneficence — acting for the patient’s good
  2. Nonmaleficence — doing no harm
  3. Autonomy — recognizing the patient’s values and choices
  4. Justice — treating patients fairly

 

An ophthalmologist scheduled corrective surgery for a nine-year-old female patient who had been diagnosed with a right Duane Syndrome strabismus. Before the procedure, the ophthalmologist had a discussion of risks and benefits with the patient’s mother, and she obtained informed consent to proceed with the surgery.

On the day of the surgery, the ophthalmologist began the procedure by disinserting the lateral rectus muscle of the left eye. Then, realizing her mistake, she reattached the muscle in its original position before carrying out the full operation on the right eye, which was the correct eye. After the procedure, the ophthalmologist spoke to the mother and explained that she had inadvertently begun the operation on the left eye but had realized the error, restored the eye to its original condition and closed the incision. She apologized and reassured the mother that the surgical steps completed on the left eye would have no lasting repercussions for the patient.

The patient came to two postoperative follow-up appointments. At the first, she was noted to be doing well. By the second appointment, she had developed an infection in the left eye. The mother then declined to make further appointments with this ophthalmologist, and she later filed a lawsuit on behalf of her daughter alleging wrong-site surgery resulting in left eye infection, blurred vision and continuing pain.

Experts who reviewed the case noted that Duane Syndrome strabismus is a congenital condition that is most commonly seen in the left eye, and they thought this fact possibly contributed to the ophthalmologist’s error in starting on the left eye instead of the right one. An independent medical examination showed that the patient’s left eye infection had resolved with antibiotic treatment. Experts thought that the patient’s other alleged symptoms were not attributable to the surgery on either eye. Based on expert reports, a decision was made to defend this case. The mother subsequently withdrew the claim.

DISCUSSION

Disclosure of medical errors to patients involves the principle of autonomy. As Jonsen confirms, “A fundamental duty of respect for [other people] dictates apology be offered the patient for harms [done by medical errors].” Attempts to hide medical mistakes are unethical and counterproductive to the physician-patient relationship and to the patient’s understanding of and recovery from an unanticipated outcome.

Despite “broad ethical consensus and multiple laws affirming the importance of disclosure [of errors],” a number of studies reveal that patients are not always told about medical mistakes. Research suggests that fear of litigation is one reason physicians are taciturn about errors. In this case, the ophthalmologist did explain her mistake of first operating at the wrong site. This admission, coupled with the patient’s development of a left eye infection after surgery, seemed to spur the mother into filing a lawsuit. This case serves as one example confirming the legitimacy of the perception that confessing a medical error may lead directly to incurring a lawsuit alleging negligence. Even so, physicians must overcome any inappropriate “desire[s] for self preservation” that push them toward nondisclosure after an unanticipated outcome, because patients and families deserve to know what transpired to produce their current conditions.

At the same time, some adverse outcomes in medicine are not the result of errors or negligence but are instead known complications of procedures or random outcomes brought about by anatomic or disease complexities. Physicians, therefore, must give careful thought to the way they tell patients about what happened to cause an unexpected outcome of care. An article about disclosure in Family Practice Management warns, “When things go bad, clinicians may jump to premature conclusions about whether an error occurred, perhaps feeling a need to offer some explanation about what happened or to cope with their own emotions over a bad outcome.”

In the event of an adverse outcome, the involved physician should find out what went wrong and should explain to the patient and family what happened. Doctors have “a strict ethical obligation to disclose [errors] to patients in a timely fashion.” However, physicians are entitled to be exonerated from responsibility if they did not make mistakes or commit negligent acts in care; a physician should not bear the blame for a poor outcome that was a random effect rather than the upshot of a lapse or blunder.

Physicians should always meet with the patient/family to talk about causes of and future care after an adverse outcome. A physician who has made a known error should add to the outcome discussion an apology expressing honest remorse and an explanation about what will be done to avert the same problem going forward.

MEDICAL LIABILITY RISK MANAGEMENT RECOMMENDATIONS

Interactions after Adverse Outcomes of Care

  • Get the facts about an adverse event to determine whether an apology or an expression of empathy is needed.
  • Plan and schedule the disclosure/apology discussion so that it will be as beneficial as possible to the patient and other participants.
    • Hold the discussion as soon as possible after immediate healthcare needs are addressed.
    • Choose a quiet, private, comfortable place for the discussion suited to the patient’s and family’s needs and conducive to conversation.
    • Consider who should participate; ask the patient who should be included.
  • Get assistance if you feel you need help preparing for a disclosure discussion. Members of a hospital’s risk management department or patient safety team can usually aid healthcare providers who want or need assistance with facets of the disclosure task. It is also appropriate to discuss a disclosure situation with a risk management or claims representative from your liability insurance company to get advice or answers to questions you may have about going through a disclosure process.
  • Elicit patient and family responses after a poor outcome, and listen to and acknowledge the responses.
  • View a disclosure/apology discussion as an education opportunity.
    • Honestly educate the patient and family by telling them all the facts you know about what happened.
    • Don’t use jargon or talk down to the patient/family.
    • Ask the patient or a family member to summarize the information back to you if you think he or she may not fully comprehend what you’re saying, and you want to check understanding.
    • Do not include subjective information or conjectures.
    • Don’t blame other providers.
  • Document in the patient’s record about the disclosure/apology discussion.
    • Include the known facts associated with how the event happened, care given in response to the adverse outcome, the key issues in the disclosure conversation, and plans for future care and future discussions.
    • Preferable documentation of an apology is brief and objective; for example, “Expressed sympathy to patient about outcome.”
    • If you are required to complete an incident report for an adverse event, do not refer to this report in the patient’s record or include a copy of the report in the record; incident reports should be used for a facility’s internal communication only.

Medical Ethics and Physician-Patient Encounters: Case Studies and Best Practices

A comatose, ventilator-dependent, car accident victim lies in an intensive care unit while her husband and her parents discuss her future quality of life and argue about what type of care she would have wanted. This scenario may initially come to mind when the average person hears the term medical ethics. However, the concept of medical ethics is much more common in everyday practice than a dramatic ICU clash is.

In the book Clinical Ethics, Jonsen and colleagues observe that “ethical issues are imbedded in every clinical encounter between patients and caregivers because the care of patients always involves both technical and moral considerations.

“Because every encounter between a doctor and a patient has a moral dimension, competency in ethics is essential to being a good doctor.” Carrese, et al.

The discipline of ethics often moves quietly through physician-patient interactions. For example, a 21-year-old male patient comes to a dermatologist with severe acne. He has had the condition since the age of 14, and he is still experiencing persistent pimples, pustules and inflamed cysts on his face and back. The dermatologist takes the patient’s history, examines him and recommends a prescription topical treatment combined with a course of oral antibiotics. This treatment clears much of the patient’s acne. In addition to being a clinical interaction, this is an ethical interaction. When a patient requested help, the dermatologist used her ability and training to benefit the patient and to do him no harm, fulfilling the ethical obligations accepted by doctors since the fifth century B.C.E., expressed in the Oath of Hippocrates.

THE CONNECTION BETWEEN RISK MANAGEMENT AND ETHICS

The concept of risk management in healthcare began in the 1970s. As more hospitals and physicians were successfully sued for damages by patients and their families, the discipline of risk management began to be applied by hospital administrators and by physicians professional liability insurance companies to predict and reduce the losses from lawsuits. Adapted to the healthcare setting, risk management aims to avert medical errors and preventable adverse events to protect physicians and institutions from financial losses. Professionals in the field of risk management identify and analyze problems that have occurred in care, and they develop and implement techniques to improve experience by minimizing patient injuries.

Bioethics is the branch of knowledge that concerns physicians and other healthcare providers and entities moral obligations to patients. Ethicist seek to identify and analyze moral questions or disputes associated with patient care and to reach a reasonable conclusion about proper or best ways to proceed.

The two disciplines — risk management and ethics — are alike in that both call for the scrutiny of information about patients substandard experiences in healthcare, and both advocate the application of techniques that will reduce difficulties, conflicts and problems so that patients’ experiences will ultimately get better. An unresolved moral issue in patient care is a potential liability exposure; therefore, recommending ways to resolve clinical ethical issues is a means for reducing overall lawsuit risks, which is the fundamental goal of risk management.

FOUR BASIC PRINCIPLES OF MEDICAL ETHICS

Many physicians may be familiar with four basic principles of medical ethics developed by ethicist Beauchamp and Childress

  1. Beneficence describes the concept of acting for the patient’s good.
  2.  Nonmaleficence describes the concept of doing no harm.
  3. Autonomy conveys the idea that each patient has a right to voice his or her own values and choices about care.
  4. Justice expresses the idea that healthcare resources should be equitably distributed among patients and that patients should be treated fairly

 

These four principles can clarify ethical problems and help resolve them, according to Beauchamp and Childress as well as other ethicist. The four principles are useful for identifying the core theme of an ethical issue. For example, an internist diagnoses cellulitis on a 71-year-old female patient’s lower left leg and prescribes an oral antibiotic for the patient. This interaction depicts the principle of beneficence — the physician is acting in the best interests of the patient. If the patient refuses to take the antibiotic and will only agree to non-medicinal therapies such as elevation, immobilization and saline dressings for her leg, the principle of autonomy becomes prominent in the interaction.

Beauchamp and Childress assert that the four principles are non-hierarchical and that “balancing these principles provides a useful framework for understanding and resolving conflicts. Bioethicist Mary B. Mahowald goes further by suggesting guidelines to help adapt the four principles to specific clinical ethics challenges. She proposes:

The interests of the patient count most. [She states that patients interests equal the amalgamation of autonomy + beneficence + nonmaleficence.]
Respect for patient autonomy trumps beneficence and nonmaleficence.
The interests of others may outweigh respect for patient autonomy. [For example, the interests of a physician to stay within the standard of care surpass a patient’s demand for an eccentric, unproven treatment.]
If harms and benefits [of a treatment course] are proportionate, nonmaleficence outweighs beneficence.
If every medical encounter has an ethical component, then summaries of closed malpractice claims, which exhibit various interactions with patients, can serve as a source for ethical themes in healthcare. It stands to reason, therefore, that physicians and other healthcare professionals can learn something more about ethics by studying a series of claims and contemplating their ethical features. The cases linked below focus on specific patient interactions in which it was vital for the involved physician to establish good communication to create a therapeutic alliance. Most cases occurred in ordinary ambulatory practice settings.

In case studies listed below, we look at a series of closed malpractice cases that all deal with common interactions physicians have with patients. These claims contain both ethical and risk management features. After presenting each case, we will discuss its ethical elements using the ideas of Beauchamp, Childress, Mahowald and other ethicists. Then we will explore risk management facets of the case by giving medical liability risk management recommendations that may help lower the risk that patients will be injured, thus decreasing the likelihood that future medical liability lawsuits will be filed.

Several of the lawsuits described were dismissed or withdrawn — they did not result in plaintiffs verdicts or settlements. Many of the physicians in the cases acted ethically and within the standard of care. This is usually true in medicine: physicians are generally used to wading through ethical tides, negotiating the ebbs and surges. However, being able to investigate “the specific content of ethics experiences” can help you to sharpen “the skills necessary to identify, analyze and manage ethics issues arising in everyday practice.” Reflecting about what you would do if faced with similar challenges is a way of preparing in advance to suitably balance ethical principles, boost the quality of your care and help protect against the risk of lawsuits.

Data Breach and Billing Audits are on the Rise

Every day it seems we read about a computer data breach or theft of information from large corporations. U.S. companies reported $40 billion in losses from unauthorized use of computers by

employees last year. The sheer size of the healthcare industry led to an increase in widely publicized breaches this year. In 2014 attempted attacks sparked concern about the overall vulnerability of healthcare organizations, and a recent breach exposed medical records for 4.5 million patients from 206 hospitals across 23 states. Even more alarming, the healthcare industry accounted for 42 percent of major data breaches reported in 2014 according to the Identity Theft Resource Center.

With the average data breach costing organizations $3.5 million, the financial impact of data breaches actually increased this year. According to annual research from the Ponemon Institute, the average cost paid for each lost or stolen record containing sensitive and confidential information globally increased more than 9 percent from $136 in 2013 to $145 in 2014. The cost per record increased to $195 for companies in the U.S. In addition, a breach that involves personal health information (PHI) must be reported to the U.S. Department of Health and Human Services’ Office for Civil Rights, which enforces the Health Insurance Portability and Accountability Act (HIPAA) and has the power to issue fines. While most medical professional liability policies contain some limited coverage for data breach, patient notification, credit monitoring and other cyber exposures; those limits of coverage are likely inadequate if your office is targeted and becomes a victim of a data breach. The cost of creating, mailing and processing just the certified letter informing each patient of the breach can run as high as $5 per patient. This does not include future expenses for credit monitoring for all patients whose information may have been exposed or potential fines you may face from regulatory bodies for allowing this breach to occur.

Furthermore, there are also an increasing number of physicians being audited for billing irregularities. These audits can come from Medicare, private insurers, RAC audits and others including Qui Tam plaintiffs. Medicare now makes it’s reimbursements to each individual provider publicly available so anyone with a computer can see how much revenue a given physician has received in the prior year from Medicare. Most medical professional liability policies provide some very limited defense coverage for these types of audits. However, those limits of coverage are inadequate in the event of a full audit of a medical practice and do not pay the fines that are usually associated and/or levied by the government for alleged “over billing” or “up-coding”.

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