Abstract
There is enshrined, within the General Medical Council's Good Medical Practice Guidelines, a professional duty imposed upon doctors to advise patients when medical errors have occurred. This issue has recently been exalted by calls from the National Health Service Litigation Authority for hospitals and doctors to adopt a more open and honest culture about disclosing medical errors to patients who have been injured during treatment. This request, and indeed obligation, to disclose medical errors does not seem to be manifesting with great regularity in clinical practice. This is despite the ethical and practical reasons for such disclosure, and its potential to reduce litigation against doctors and hospitals and by association the significant sums paid out each year in damages and legal costs, which money could more readily be directed towards improving patient care.
There is a clear professional duty imposed upon a lawyer who makes a mistake to report that error to his client and to advise that client to seek independent legal advice. A failure to comply with that duty could lead to the lawyer facing charges for professional misconduct.
There is also, in effect, a similar professional duty imposed upon doctors. This can be found in paragraph 30 of the General Medical Council's (GMC) Good Medical Practice Guidelines
1
which states:
‘If a patient under your care has suffered harm or distress, you must act immediately to put matters right if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects.’
This similarity of duty is perhaps not surprising, as both professions involve an inherent fiduciary relationship with the client/patient; and therefore an obligation to act in the client's/patient's best interests.
This article will attempt to address the rationale for adopting an open disclosure policy and what the authors perceive could be the potential benefits to both patients and clinicians of advising patients of mistakes when things have gone wrong.
The ethical and practical arguments for disclosure
There are obvious ethical and practical reasons to support the disclosure of medical errors. 2 In relation to the former, in order to make informed decisions about their subsequent treatment, patients require information about any errors that have been made. Thus, disclosure in these circumstances can perhaps be regarded as an integral part of the informed consent process, enhancing patient autonomy. From a practical standpoint, the disclosure of medical errors also creates an opportunity for patients to become part of the quality improvement process which in itself has the capacity to lead to improved patient outcomes. 2
The practicalities of disclosure
The disclosure of medical errors does, however, require a certain finesse, and it is not the straightforward task for clinicians that it first appears. No clinician, or any other professional for that matter, would fail to be perturbed by the realization or accusation that their conduct has, or may have been, negligent. It is clearly every reasonable clinician's intention to improve the quality of their patient's health, and it can be particularly distressing for a doctor to subsequently learn, that in addition to facing accusations with regard to their professional competence, their best efforts have compounded rather than ameliorated the patient's problem. It also has to be remembered that doctors perform a complex role in society, often in very difficult circumstances but they like all human beings, are fallible and can sometimes make mistakes; this is precisely why professional indemnity insurance is incepted. To pretend otherwise is, in the view of the authors, both short-sighted and capable of projecting the wrong image of doctors to the general public.
It must therefore be appreciated that disclosing medical errors can be a very challenging arena for doctors to enter, particularly as many have never had any formal training in how to approach this issue. Therefore, in order to make such an approach effective, support is needed to train staff in this field and it is also essential for hospitals to take responsibility for regularly reviewing medical errors and for creating policies related to disclosure. There has been some clear headway made in countries such as Australia, New Zealand and the UK where programmes have been implemented to help healthcare professionals meet the challenges associated with disclosing medical errors. 3–5
Recently, Steve Walker, head of the National Health Service Litigation Authority (NHSLA) has urged NHS Hospitals to adopt a new culture of honesty and openness towards patients who are injured during surgery. The message being sent to doctors by Mr Walker, is that if doctors are aware of an error then they should feel free and, indeed, under an obligation to the patients and to apologize and explain, either verbally or in writing, even if the patient is likely to sue. In short, from a humanitarian perspective, patients should receive and be entitled to an explanation when things go wrong, irrespective of whether or not it acts as a catalyst for litigation. This appears to be nothing more than reiterating what should already be happening as a result of following Good Medical Practice Guidelines by the GMC. 1
In practice, and despite the potential benefits of and ethical rationale for disclosure, there is a clear divide between what patients want and what is provided after a medical error has occurred. This will no doubt ring true to many lawyers engaged in the practice of clinical negligence litigation.
The authors' combined experience in dealing with clinical negligence claims is that one of the main driving factors which often leads clients/patients and their families to sue is the sense of anger and frustration that they feel when hospitals or doctors are, or appear, reluctant to acknowledge and explain cases of negligence. In these circumstances, the client/patient feels that there has been an automatic closing of ranks or ‘cover-up’ and that the only way that they are going to get answers to the questions they have is by commencing litigation.
This attitude with regard to the disclosure and acceptance of errors is highlighted in case study 1 in which the authors were both instructed.
Case study 1
The Claimant attended hospital for functional endoscopic sinus surgery, which appeared to proceed without incident. The Claimant was duly discharged with appropriate advice. The Claimant subsequently sneezed and developed a painful swelling of the eye and reattended the hospital where he was assessed and discharged with advice as to treatment and instructions to return if the swelling did not abate. The swelling increased and the Claimant returned to the hospital where he was assessed as having air in the orbit and classed as a clinically urgent case. The hospital sought expert ophthalmic advice from the Defendant hospital. The Defendant hospital advised that the Claimant would probably require an urgent decompression of the orbit and despatched a Consultant ophthalmic surgeon to assess the Claimant. The Consultant assessed the Claimant and advised that he did not need an urgent decompression and that he should be managed conservatively at the Defendant hospital. The Claimant was transferred to the Defendant hospital where regrettably his vision deteriorated and despite the then performance of an urgent decompression procedure, the Claimant lost the sight in his eye. The Claimant was advised by the Defendant hospital that his loss of vision had resulted from air in the orbit which had caused an increase in orbital pressure which had cut off the blood supply to his optic nerve. The Claimant's case was actually published by the ophthalmic surgeons at the Defendant hospital in a peer-reviewed journal stating the cause of the Claimant's loss of vision as air in the orbit. The Claimant's case was somewhat unique as usually this phenomenon (i.e. air in the orbit) is benign and self-limiting. The Claimant was dissatisfied with his treatment by the Defendant, complained and subsequently sought legal advice. The Claimant's own independent ophthalmic evidence indicated that the Claimant's orbit should have been urgently decompressed at the time he was first assessed by the Ophthalmic consultant; and had this been done, the Claimant would have retained useful formed vision in his eye. Proceedings were issued and the claim was defended. The Defendant obtained its own expert evidence and surprisingly sought to rebut the case on the basis that the Claimant's injury had been caused by infection, rather than air in the orbit notwithstanding the fact that the clinicians previously involved in the Claimant's treatment had already published an article stating that the injury was caused by air and that in such clinical circumstances they would now advocate urgent decompression. In addition, and perhaps more surprisingly, after this Defence had been adopted, there was no apparent effort by the Defendant, as far as the Claimant's ophthalmic expert could tell, to publish a retraction of that article. The Claim was ultimately settled in the Claimant's favour after a meeting of the experts, without any formal admission of liability by the Defendant.
In fact, the Claimant in case study 1 was astonished and angered by the approach adopted by the Defendant to defend his claim, because he actually recalled being sat down by the Registrar at the Defendant hospital who explained to him in detail with diagrams how the damage to his eye had been caused by air in the orbit. This case study demonstrates a failure to disclose and accept errors, and goes some way to explain why perhaps the public's faith in the medical profession's willingness to admit mistakes is somewhat jaded.
A recent report by the Healthcare Commission has demonstrated that approximately half of NHS Complainants only want an apology or recognition. 6 A simple recognition of the error and apology therefore, has the capacity to save the NHS a lot of money, which could be better directed towards improving patient care. When it is considered that the NHS delivers about 380 million treatments per annum and receives about 140,000 complaints the scale of potential cost savings from litigation are obvious. In an analysis of 100,000 complaints, the Healthcare Commission recommended an apology in 23% of those cases. 7 Anna Walker, the Commission's Chief Executive said ‘It is often a distressing and frustrating time for patients who feel they haven't received the care they deserve. It is striking that so many people simply want an apology and steps taken to ensure the problem is not repeated.’ This patient–client attitude is illustrated by case study 2 in which the authors were both instructed.
Case study 2
The Claimant was born on 14 May 1946. In 1976, at the age of 30, the Claimant developed a paraurethral dermoid cyst of her vagina and was referred by her general practitioner (GP) to a consultant obstetrician and gynaecologist at the Defendant Trust. The Claimant was assessed on 9 August 1976 and the decision was taken to excise the cyst. The procedure to remove the cyst was performed under general anaesthetic on 27 August 1976. The Claimant was subsequently discharged from the Defendant hospital and almost immediately began to suffer urinary problems, which included involuntary vaginal leakage of urine. The Claimant reported these problems to her GP who advised the Claimant to raise them with the Consultant at the Trust at her outpatient review. The Claimant attended her outpatient review on 11 October 1976 where she was seen by the Registrar. The Claimant reported the urinary difficulties to the Registrar, who it was alleged was somewhat dismissive and simply advised her that these were inevitable and unavoidable consequences of the surgery which she had undergone and that she would have to learn to live with them. The Claimant was subsequently discharged from further follow-up. The Claimant relied upon and accepted the Registrar's alleged advice and continued to suffer urinary problems including involuntary vaginal leakage and urinary tract infections for in excess of 20 years. In 2003, the Claimant was referred by her GP for obstetric and gynaecological review at the Defendant hospital on an unrelated health matter. At this consultation, which took place on 16 January 2003, the Claimant was advised by the attending doctor that the urinary problems from which she had been suffering since 1976 could be treated and were related to the surgery which she had undergone in 1976. At this consultation, the attending doctor also advised the Claimant to seek legal advice. After significant clinical assessment and testing, the Claimant underwent urethral repair using vaginal tissue. The repair procedure was successful taking into account the Claimant's presenting condition and symptomatology.
The Claimant's independent obstetric and gynaecological and urological evidence indicated that the Trust had been negligent in 1976. The Claimant's expert evidence indicated that, by the standards of 1976, the decision to excise the cyst was reasonable. However, the experts opined that the surgery itself was performed negligently in that during the procedure, the urethral anatomy had not been properly defined such that the surgeon had breached the urethral wall and in attempting a repair had caused damage to the distal urethra and external urethral meatus and also created a urethro-vaginal fistula which had led to the Claimant's subsequent urinary problems. The Claimant's experts opined that the damage would have been patently obvious to the surgeon at the time of the injury and the particular tragedy in this case is that there was a window of opportunity for the problem to have been remedied before the urethral damage became permanent. The Claimant's experts also opined that if the evidence was accepted by the Court in relation to matters at the outpatient appointment on 11 October 1976, then the Defendant had also been negligent on that occasion in discharging her without further follow-up. The Defendant obtained expert evidence in rebuttal of the Claimant's claim. The Defendant argued that the original procedure was appropriately performed on 27 August 1976. The Defendant further argued that the outpatient appointment was also appropriately conducted on 11 October 1976 and that the Claimant raised no urinary concerns with the Registrar at that time. The Defendant asserted that the cause of the Claimant's urinary problems had arisen due to the non-negligent manifestation of ischaemic necrosis. The case subsequently settled in favour of the Claimant after the joint meeting of experts, again, without a formal admission of liability by the Defendant.
In case study 2, the Defendant also actually sought to argue that the Claimant herself was to blame for her suffering by not seeking treatment for her urinary problems earlier than 2003. The Claimant's case on this point was simple, in that she did not seek such treatment on the basis that she accepted the doctor's advice in 1976, to the effect that nothing could be done for her. The Claimant in this case was in fact most distressed and even more determined to litigate by the assertion made by the Defendant to the effect that she would actually choose to endure years of involuntary incontinence, sometimes in public, rather than to seek medical treatment for her problems. At the outset of the case the Claimant made it clear to her legal advisers, that had the Trust simply acknowledged their error and apologized at the outset she would have left the matter there without resorting to formal litigation. One positive aspect of this case, however, is that the approach of the doctor who the Claimant saw in January 2003, and who in fact explained that an error had been made and that the Claimant should seek legal advice, does go some way to demonstrate that there has been a significant shift since 1976 in the way in which doctors address patients' concerns. In the view of the authors, that sort of honest and humanitarian approach is to be both acknowledged and applauded.
The authors are in no doubt that many practitioners of clinical negligence will have had similar experiences of a client's/patient's ardour to sue being chastened by a subsequent failure of the NHSLA or their legal representatives to adopt an enlightened and informed position to the most patently indefensible cases. This can often be the cause of further unnecessary misery and delay in resolving the patients claim.
This attitude of Defendants also serves to increase legal costs and was illustrated by the above mentioned case studies where the failure of the Defendants to adopt a pragmatic approach early on in the cases resulted in the payment of significant legal costs, which in both cases exceeded the level of damages recovered by the Claimants.
Will the disclosure of medical errors increase litigation?
The concern that disclosing medical errors will increase litigation appears to be one of the main barriers to adopting such a practice of openness. It would be naïve to say that the proffering of such an explanation would eliminate claims; it would not, as some patients will always sue. Indeed, and dependent upon the nature of the injury sustained, for example if the patient is no longer able to be self-supporting, they may be financially obligated to take such action. This approach could, however, go some way towards reducing the significant sums paid out in both damages and legal costs in the United Kingdom each year. For example, the NHS paid out nearly £109 million in Claimants' legal costs in 2007–2008, together with damages of £385 million. 8
Although the literature on the topic is inconclusive, the available data suggest that disclosing medical errors results in the level of claims remaining constant or decreasing. 1 In the USA there is an extremely litigious culture and the data will reflect this. In the opinion of the authors disclosure in the UK would have the same or perhaps an even greater impact, as there is a greater reluctance to bring legal actions on the part of patients. A recent Healthcare Commission report found that only one in five Complainants actually wanted to take action against medical staff. 7
While it remains to be seen whether Steve Walker's call to the medical profession concerning disclosure is effective, it would seem in the authors experience, that it is acts of omission rather than commission as far as disclosing and apologizing for medical errors is concerned that has the greatest capacity to act as a catalyst for litigation.