Medicolegal Issues

Medical errors: Meeting ethical obligations and reducing liability with proper communication

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You, your institution, and the patient will benefit from your understanding of when error disclosure is required and best communication practices

In this Article

  • Medical error disclosure requirements
  • The TEAM approach to disclosure
  • Saying “I’m sorry” and malpractice risk


 

References

In her position as Chief Medical Officer, Dr. Patrice Weiss leads efforts not only to assure clinical excellence from the more than 900 clinicians at the Carilion Clinic in Roanoke, Virginia, but also to improve patient experience. She lectures extensively on one of her passions in medicine: medical errors, and the concept of the second victim. OBG Management has discussed with Dr. Weiss her concerns and pointers for those clinicians both involved in and in close proximity to others who have been involved in a medical error, and how this involvement can lead to personal consequences and coping challenges. (Listen to, “Medical errors: Caring for the second victim [you].”) In this current Q&A article, the conversation hones in on unanticipated outcomes with and without medical errors and how best to approach communications with patients in the context of both circumstances.

OBG Management: What is the definition of a medical error?
Patrice M. Weiss, MD:
Clinicians may be somewhat surprised to learn that there is no universal definition of a medical error that sets standardized nomenclature. The Institute of Medicine, in its landmark work To Err Is Human, adopted this definition: “failure of a planned action to be completed as intended, or the use of a wrong plan to achieve an aim.”1

In general terms, a medical error is an act of commission or omission, meaning that something was done or not done, that has negative consequences for the patient and is judged as wrong by our peers. An unanticipated outcome can be due to a medical error or can occur without a medical error. An unpredicted side effect, for instance—one that may have a low probability of drug–drug interaction or drug reaction occurrence—is an unexpected outcome. If the incidence of a drug reaction is 1 in 1,000 and your patient is that one, it does not necessarily mean that there was a medical error.

Often, if the outcome is unanticipated, patients and their families will assume, rightly or wrongly, that a medical error did occur.

OBG Management: Are physicians required to disclose medical errors?
Dr. Weiss: Yes. The Joint Commission’s standard principle states that the responsible licensed independent practitioner, or his or her designee, clearly explain the outcome of any treatment or procedure to the patient and, when appropriate, the patient’s family, whenever those outcomes differ significantly from the anticipated outcome.2

This can even include unanticipated outcomes that are not due to an error. Specifically speaking about medical errors, however, we do have the responsibility, both from this standard and from a professional and ethical standard to disclose what, why, and how the error occurred and what we are going to do to ensure it does not happen again.

OBG Management: How does a physician best communicate to a patient an unanticipated outcome that was not due to a medical error?
Dr. Weiss:
Usually we as health care providers are more comfortable talking about unanticipated outcomes without medical errors. It is important to, when speaking with patients, be clear and concise, describing what you best know at the time, in language that patients can understand. I often jokingly say that, at a minimum, all of us in health care are bilingual: We speak our native language, and we speak “medicine.”

After describing unanticipated outcomes to patients and their families in terms they understand, affirm their understanding with a follow-up open-ended question. “Do you understand what I just said to you?” is ineffective. A better approach is saying, “Mrs. Jones, in your own words, will you describe back to me what your understanding is as to why this happened?” The answer received will allow you to know the patient’s level of understanding. It also will give you the opportunity to clear up points that are not clear or were misinterpreted. Do not leave patients feeling in a “lurch,” left to wonder or with a lack of understanding, or worse yet, with a sense that you are holding something back.

OBG Management: What is the best approach to disclosing an unanticipated outcome that was due to a medical error?
Dr. Weiss:
First and foremost, you must be certain that a medical error did actually occur. There can be speculation at first, and that speculation should occur behind the scenes, with peer review or a root cause analysis on the event. Speculation should not enter into your conversation with the patient. Notional language can add to their anxiety, create mistrust on the patient’s part, and perhaps make a patient feel as if you are not giving the answers that he or she needs.

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