Communication of Adverse Events and Medical Errors

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MAG MUTUAL INSURANCE COMPANY Communication of Adverse Events and Medical Errors Carlye Hendershot, RN, MSN/FNP, LNCC, CPHRM Risk Management & Patient Safety Consultant, MAG Mutual Insurance Company Rebecca
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MAG MUTUAL INSURANCE COMPANY Communication of Adverse Events and Medical Errors Carlye Hendershot, RN, MSN/FNP, LNCC, CPHRM Risk Management & Patient Safety Consultant, MAG Mutual Insurance Company Rebecca Summey-Lowman, RD, CPHRM Senior Risk Management & Patient Safety Consultant, MAG Mutual Insurance Company Course Description is intended as a practical guide to navigate the challenging process of talking to patients and caregivers when things don t go as planned. The course reviews current recommendations regarding disclosure of medical errors and explains the rationale behind these recommendations from a risk management perspective. It also provides practical advice about how to engage in and document these conversations in a way that protects both you and your patients. The activity provides self assessment questions and links to additional resource materials. This course offers a maximum of 1.0 Category 1 credits toward the AMA Physician's Recognition Award. (Please note: CME credit for this test can only be given to our insured policyholders.) Educational Objectives At the conclusion of this educational activity the physician will be able to: Explain how properly disclosing adverse events and errors can protect both doctors and patients; Identify helpful communication approaches for talking with patients and family members about medical errors; and Describe the steps to take when discussing adverse events, and how to document this process appropriately. Proposed CME Credit: 1 hour Faculty: 1. Carlye Hendershot, RN, MSN/FNP, LNCC, CPHRM Risk Management & Patient Safety Consultant, MAG Mutual Insurance Company 2. Rebecca Summey-Lowman, RD, CPHRM Senior Risk Management & Patient Safety Consultant, MAG Mutual Insurance Company Test Instructions: Completed tests are electronically submitted to MAG Mutual by using the Submit button at the end of the test. A passing score is 80% or above. If you achieve a passing score, a certificate of completion will be mailed to the address you will provided on your test. You must use a computer that supports either Internet Explorer (Version 3.0 or higher), Netscape Navigator (Version 3.0 or higher) or Mozilla Firefox (Version 2.0 or higher) to take this test online. If you wish to take a written version of this test, please contact us. You must complete the evaluation at the end of the test before credit can be awarded. Your test form will be electronically scored and the results immediately displayed on your screen. Faculty Disclosure Statement: CME faculty are required to disclose to the audience any commercial relationships that may create or may be perceived as creating a potential conflict of interest with the Page 2 of 15 material being presented or discussed. This disclosure does not reflect on the quality of the activity, but allows participants to make informed judgments regarding program content. The above faculty has an affiliation/financial interest as follows: Carlye Hendershot, RN, MSN/FNP, LNCC, CPHRM Risk Management & Patient Safety Consultant, MAG Mutual Insurance Company Rebecca Summey-Lowman, RD, CPHRM - Risk Management & Patient Safety Consultant, MAG Mutual Insurance Company Term of Accreditation Date of Original Release: February 14, 2008 Review/Revision Date: November 14, 2012 Termination Date: November 14, 2015 MAG Mutual Insurance Company is accredited by the Medical Association of Georgia to offer continuing medical education to physicians. MAG Mutual Insurance Company designates this educational activity for a maximum of 1.0 AMA PRA Category 1 Credits(s). Physicians should only claim credit commensurate with the extent of their participation in the activity. For more information, us. Page 3 of 15 Table of Contents I. Why Disclose Errors? II. Effective Communication of Errors or Adverse Events III. Appropriate Documentation of Disclosure IV. References V. Additional Resources Page 4 of 15 I. Why Disclose Errors? Virtually every practitioner knows the sickening realization of making a bad mistake. You feel singled out and exposed seized by the instinct to see if anyone has noticed. You agonize about what to do, whether to tell anyone, what to say. Later, the event replays itself over and over in your mind. You question your competence but fear being discovered. You know you should confess, but dread the prospect of potential punishment and of the patient's anger. You may become overly attentive to the patient or family, lamenting the failure to do so earlier and, if you haven't told them, wondering if they know. (1) Does this scenario sound familiar? After two decades of increasing demands for accountability and transparency in the way medical errors are handled, there is now clear agreement among clinical leaders, professional healthcare associations, patients rights advocates, medical ethicists, regulators, researchers, the popular media, and healthcare consumers that honest disclosure of medical mistakes or unintended outcomes is not only the right thing to do, but the expected course of action. Despite this broad consensus of opinion, many frontline healthcare providers remain reluctant to embrace a culture of disclosure, often due to fear of liability or lack of knowledge about how to communicate effectively. A 2006 study of more than 2500 practicing physicians in the United States and Canada revealed wide variation in how physicians would disclose harmful errors. For example, 42% of physicians would disclose the fact that the adverse event was due to an error, while 56% would mention the adverse event but not the error. In addition, while all the scenarios presented in the study involved clear-cut serious errors, only 33% said they would explicitly apologize, while 61% would simply express regret. (2) Direction for why and how how to proceed with medical error disclosure comes from diverse sources: traditional medical ethics teachings, professional practice research and guidelines, consumer advocacy principles, communication training techniques and clinical risk management recommendations. A Medical Ethics Perspective The underlying principles of modern medical ethics are derived from ancient philosophical and religious teachings from all over the world, including specific doctrines such as the Hippocratic Oath and moral codes such as the Golden Rule (also known as the ethic of reciprocity ). Medical ethics concepts have also been influenced over time as individuals and groups wrestle with dilemmas related to wartime practices, human research, criminal execution, evolving legal procedures and changes in society at large. Page 5 of 15 In 1847, the American Medical Association (AMA) unanimously adopted the world's first national code of professional ethics in medicine. Today, the AMA s Code of Medical Ethics, considered the authoritative guide on this subject for practicing physicians, articulates the fundamental tenets of ethical medical practice, including: Beneficence (the duty to promote good and act in the best interest of the patient and the health of society) Nonmaleficence (the duty to do no harm to patients) Respect for autonomy (the duty to protect and foster a patient's free, uncoerced choices) Veracity (the duty to tell the truth) Adhering to these principles creates a healthy context for the act of disclosing medical errors. The AMA s opinions regarding informed consent, withholding information from patients, and the responsibility to study and prevent error and harm can also inform decisions about openly discussing medical mistakes with the patient and caregivers. According to the AMA s Code of Ethics: When patient harm has been caused by an error, physicians should offer a general explanation regarding the nature of the error and the measures being taken to prevent similar occurrences in the future. Such communication is fundamental to the trust that underlies the patient-physician relationship, and may help reduce the risk of liability. (3) The American College of Physicians Ethics Manual also addresses the ethical aspects of disclosing medical errors: However uncomfortable for the clinician, information that is essential to and desired by the patient must be disclosed [including] information about procedural or judgment errors made in the course of care if such information is material to the patient's well-being. Errors do not necessarily constitute improper, negligent, or unethical behavior, but failure to disclose them may. (4) Healthcare Regulatory and Patient Safety Voices: The Message is Clear As of 2001, health care organizations accredited by Joint Commission have been required to disclose to their patients, through the responsible physician, when they have experienced unexpected outcomes and adverse events. And, while federal Medicare regulations don t mandate disclosure of adverse events to patients (yet ), they do require that hospitals track medical errors and adverse patient events, analyze their causes, and implement preventive actions and mechanisms that include feedback and learning throughout the hospital. (5) Page 6 of 15 The American Hospital Association s pamphlet entitled The Patient Care Partnership informs patients If anything unexpected and significant happens during your hospital stay, you will be told what happened, and any resulting changes in your care will be discussed with you. (6) In 2006, the Harvard Hospitals coalition issued a comprehensive consensus statement advocating a strong commitment to full medical error disclosure. (7) Similarly, leaders in healthcare policy and safety standards such as National Quality Forum, Institute of Medicine, Agency for Healthcare Research and Quality, Institute for Healthcare Improvement, National Patient Safety Foundation and ECRI Institute, as well as numerous university-based healthcare systems, have all articulated comparable positions on error disclosure over the past decade. It s What Patients and Families Want In 2005, a Joint Commission report that examined how to improve medical liability and patient safety processes stated it well: Lack of disclosure and communication is the most prominent complaint of patients, and their families, who together have become victims of medical error or negligence. Years of expensive and wounding litigation often ensue when families are sometimes only seeking answers. (8) Decades of research from multiple disciplines has shown over and over that there is a direct link between the quality of communication between the patient and the healthcare team and medical malpractice lawsuits. The equation is simple: honest, compassionate, respectful communication encourages patients and their families to trust their health care providers more and leaves them less likely to want to blame someone if an unintended outcome occurs. In one 2011 study, a sample of 30 community members told their stories of medical error. Most of the study group regarded poor communication itself as a medical error; only four participants described a true medical error that involved a deviation in care. Their experiences consistently focused on a general lack of communication or a provider's poor interpersonal communication skills, which is markedly different from the traditionally- accepted definition of error as a failure to follow the standard of care. (9) What do patients really want from you when things don t go well? Truthful acknowledgment of the unexpected outcome or error, sympathy and empathy, taking responsibility for what happened, an apology if something went wrong, and reassurance that you will fix the problem so it won t happen to someone else. The Legal Climate Despite the well-known benefits of disclosure, and even though this is what patients generally say that they want, most physicians still don t communicate errors to patients, often due to a fear of liability. However, when considering legal ramifications, physicians should remember that there is no sigh of relief point if an error has been concealed: in Page 7 of 15 virtually all situations where a provider hides an error, the law says that the statute of limitations for bringing a malpractice claim does not begin to run until the fraudulent concealment is discovered. Additionally, verdict research has shown that juries may increase awards when a physician s behavior is viewed as self-serving or deceptive, and the court may also allow extra punitive damages when errors are concealed, as this is viewed as particularly egregious behavior in the context of medical malpractice allegations. So, is there any legal protection for a physician who chooses to disclose (and perhaps apologize for) a medical error? According to a 2008 Annals of Internal Medicine review, 36 states have enacted apology laws protecting voluntary disclosures. In 28 of these states, apology laws prevent the use of expressions of sympathy, regret, and condolence against the physician in subsequent litigation. In the other 8 states, apology laws protect admissions of fault as well as expressions of sympathy. (10) There are many state-to-state variations on the specifics of these laws, so it is very important that the provider be familiar with the disclosure laws that apply to the state(s) that he or she practices in. For example, some states protect oral, but not written, statements, while some states have enacted laws mandating that hospitals or their physicians notify patients of medical errors leading to adverse outcomes. (Contact your professional liability insurance carrier, state medical board, local medical society or an attorney for information specific to your state). Opinions vary as to what demonstrable effects error disclosure and apology programs have on legal costs and outcomes; some health systems (VA Hospitals, University of Michigan, Stanford, and others) report reduction in malpractice claims, more settled claims, fewer plaintiffs verdicts, reduced payments per claim and decreased legal expenses, while some experts argue that drawing attention to errors would likely increase litigation volume and costs. Regardless of whether litigation costs are reduced, most players agree that patients and their families and medical providers receive substantial tangible benefits from improved communication with each other and improved communication clearly reduces liability exposure and improves safety and clinical outcomes. II. Effective Communication of Errors or Adverse Events For patients and family members, the physical and emotional devastation of medical error cannot be easily overcome. What they want most out of their ordeal is honest and open dialogue about what went wrong, and a legacy having their experience serve as a lesson for prevention in the future. (8) Despite the broad consensus of opinion about disclosure of and apology for medical errors, the actual process of communicating with patients and their family members about Page 8 of 15 errors and adverse events remains understandably intimidating for many physicians. Fears about litigation and worries about loss of reputation, licensure, and income play a role, as well as concerns regarding the negative psychological impact of discussing an unintended act or outcome. Lack of formal disclosure training has been identified as a barrier as well. Telling patients that something went wrong will never be painless or risk-free, but there are resources available to help guide the physician through this challenging process. Do s Seek help when deciding whether, how and what to disclose start by promptly contacting your internal risk management or quality assurance staff or professional liability insurance carrier for guidance. Initial discussion of the adverse event with colleagues should be limited to only what is clinically necessary to provide safe and appropriate continuity of care for the patient consult with your internal risk management or quality assurance staff or professional liability insurance carrier for guidance prior to engaging in an investigation or discussion with peers. If an obvious error has been made: It is generally recommended that the caregiver admit it, take responsibility for it, apologize, and express a commitment to finding out why it occurred but consult with the above personnel first for guidance on how to proceed. Prepare for responding to an adverse event before one happens by identifying your own challenges and strengths. A 2006 research paper identified several factors that can affect voluntary disclosure of errors by physicians. Some of the impeding factors included attitudinal barriers (perfectionism, arrogance, doubting the benefits of disclosure, belief that disclosure is an optional act of heroism); helplessness (perceived lack of confidentiality, collegial peer support, control, feedback or immunity); uncertainties (about how/what to disclose, disagreement about cause of adverse event, worry about dumping on the patient to relieve guilt); and fear/anxiety (legal, financial, professional and reputational consequences, dealing with patient/family anger/loss, looking foolish, sense of personal failure/loss). (11) Conversely, the paper also identified factors that tend to facilitate physician disclosure of adverse events: responsibility to patient (desire to show respect, treat others fairly, facilitate further medical care); responsibility to profession (desire to share lessons learned, serve as a role model, change medicine s culture by accepting imperfections); responsibility to self (desire to be accountable, sense of duty as a physician, maintaining integrity); responsibility to community (enhance the health of future patients, sustain patients trust in the medical profession, help patients understand the complexity of medical errors). (11) Page 9 of 15 Seek additional hands-on communication and disclosure training look for programs that include interactive role-playing activities. Develop a culture that encourages appropriate error disclosure at all levels obtain support and buy-in from colleagues, staff and administrators and ensure appropriate training for all involved team members. Patient education, proper informed consent, and an agreed-upon plan of care all support shared decision making between the physician and the patient, which lays the groundwork for a more successful discussion should an unintended outcome occur and always remember that thorough documentation of patient education and the informed consent process in the medical record is your best defense when allegations of negligence are made after an adverse event occurs that is not due to error. Consciously utilize strong communication techniques: Try to plan what you will say, when and where you will say it and who will be present. Privacy and an unhurried approach are key. Qualities that build trust when communicating with patients: transparency, patient-centeredness, a caring and empathetic attitude, genuine interest in what the patient/family member has to say, respect, humor when appropriate. Don t be afraid to say I don t know (followed up with but I will try my best to find out if appropriate to the situation). Be aware of the patient s health literacy, language comprehension and cultural differences speak slowly and clearly without using medical jargon lack of understanding on the part of the patient or family member will likely hinder what might otherwise be a successful conversation. Pause to listen to the patient s story, verify what you heard by repeating it back, ask the patient about his/her opinions and expectations, and encourage questions. Mind your body language: sit down, maintain gentle eye contact, try not to appear rushed (even if you are). Demonstrate empathy by using such statements as I understand how scary this must feel to you. Try to remain calm take a moment to collect your thoughts before responding, especially when dealing with a patient s hostility or grief and don t forget to breathe. Communication examples: I m sorry. Th
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