Truth or Consequences: Does Disclosure Reduce Risk Exposure?

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Dec. 20, 1999 (Boston) -- Accidents will happen, but doctors or hospital staff members who admit from the outset that they've made a mistake and pledge to work with patients and families to set things right can help restore balance and sanity to the process of risk management. That's from a report in the Dec. 21 issue of the journal Annals of Internal Medicine.

Hospitals that take a "humanistic" approach to risk management -- a process that involves early and active investigation of errors, keeping lines of communication open, full disclosure of fault to patients who have been injured due to hospital-related accidents or medical negligence, and fair compensation -- may be at lower risk for liability than hospitals that throw up defenses at the first sign of trouble, write Steve S. Kraman, MD, and Ginny Hamm, MD. Kraman and Hamm authored the study and are from the University of Kentucky and Veterans Affairs Medical Center in Lexington.

Although telling patients that they have been injured due to a preventable care-related error would seem to be a call for ambulance chasers to come crawling out of the woodwork, just such a policy has been in place at the Lexington VA Medical Center for 12 years, and it seems to be working for the benefit of providers and patients alike, says Kraman.

"We didn't start doing this to try to limit payments; we did it because we decided we weren't going to sit on or hide evidence that we had harmed a patient just because the patient didn't know it," he tells WebMD. "We started doing it because it was the right thing to do, and after a decade of doing it decided to look back to see what the experience had been. The indication that it's costing us less money was really unexpected."

Although it's difficult to make meaningful comparisons about litigation between different institutions, the authors found that "despite following a policy that seems to be designed to maximize malpractice claims, the Lexington facility's liability payments have been moderate and are comparable to those of similar facilities," the authors write. They attribute the lack of a negative financial impact to the institutional policy of notifying patients of substandard care and helping them with filing comprehensive claims.

"In our experience, plaintiff's attorneys, after first confirming the accuracy of clinical information volunteered by the facility, are willing to negotiate a settlement on the basis of calculable monetary losses rather than on the potential for large judgments that contain a punitive element," Kraman and Hamm write.

A physician and lawyer who often represents plaintiffs in medical mistake cases tells WebMD that he agrees with the policy in principle, but has never seen it carried out in real life. "I am all for, 100%, unequivocally, early investigation, early assessment, and early help to the victim of a medical error or negligent medical act," says Max Borten, MD, JD, who is with the firm of Dropkin, Perlman, Leavitt, and Rubin in Lexington, Mass. "What I have found is that once the victim of a medical error comes to a lawyer, there is a lot of anger, and the process as it is set up at the present time, the 'adversarial process,' does nothing but multiply the client's anger exponentially; the longer the process, the greater the anger."

But Borten says that although his normal practice is to send a copy of the complaint or a significant portion of it to physicians and their insurers and to ask for a face-to-face discussion before filing the case in court, the response from defendants has been uniformly negative, because physicians are usually reluctant to admit that they have erred, and insurers are often unwilling to settle, he tells WebMD.

A legal authority who has extensively studied the issue agrees that from the provider's standpoint, telling the truth is better than lying, but doctors don't always know when they've committed errors, and may therefore be on the defensive when accused of wrong-doing.

"To tell the patients presupposes that you are recognizing all the events," Edward P. Richards, JD, MPH, professor at University of Missouri-Kansas City School of Law, tells WebMD. "I don't believe that very many doctors consciously cover up bad things they do to patients. Most doctors [who get sued] are not aware they have done things to patients. ... The reality is that you only find this kind of thing through in-depth, post-incident, retrospective chart review."


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