Doctors Disclosing Errors Made By Other Doctors? Two Recent Studies...

There were two studies published recently on this topic that our readers need to know about: "Specialist Physicians' Attitudes and Practice Patterns Regarding Disclosure of Pre-Referral Medical Errors" by Dossett et. al and "Ethical Duty of Health Care Systems to Address Interfacility Medical Error Discovery" by Antunez et. al.   

The researchers with the Dossett et. al paper interviewed cancer specialists regarding their willingness (or lack thereof) to disclose errors made by referring physicians to patients, and the reasoning behind their feelings.  Interesting paper that had many direct quotes from their surveys of cancer specialists. In short, the majority of physicians would not disclose errors made by other doctors, and the chief reasons were 1) it wouldn't help the patient or family anyway; 2) it would only add stress and anxiety for the patient in an already tense situation (i.e, fighting cancer); 3) damage to referral relationships and potential legal liability.  Each rationale is maddening, especially if a referring doctor misdiagnosed cancer and the patient is severely injured or will die with all the financial repercussions, pain and suffering, etc. Clearly, patients and families need to be told the truth.  

The Antunez article makes the case that errors made by referring physicians (or other physicians) need to be disclosed, and the best route is through some sort of collaborative arrangement between institutions. Somewhat similar advice was given in a commentary written by noted disclosure researcher Dr. Tom Gallagher. 

Several thoughts and reactions:
1) How often have we heard doctors way too eager to disclose?  Gosh, that doc down the road absolutely butchered you...should have come to me first!"   It happens all the time, and some of it (perhaps most of it) is totally inappropriate.  As a family member who has experienced medical errors twice (three times if you count my dog, Sparky), I always caution "downstream" doctors from casting blame on "upstream" physicians.  I always tell these "downstream" docs that they weren't involved in the earlier care, didn't know the prior condition of the patient, didn't listen to informed consent, don't know the patient's compliance (or lack thereof), etc, etc.  So, keep this advice in mind as we move forward with this column.  

2) There are many stories of physicians being confronted by patients and families who suspect an "upstream" doc committed malpractice and the patient/family wants the "downstream" doc to render judgement (and crucify) the "upstream" doc.  Again, I have always cautioned docs about being too quick to cast blame for all the reasons stated above. In these cases, I teach docs to a) empathize ("I am sorry you are not happy with the prior care"), b) steer the patient back to the original doctor with educated questions ("If you were my family member, here is what I would be asking); and c) transition the discussion to how you can help going forward, including achieving the outcome desired by the patient.  This is a safe and responsible response...

3) But what about a patient who is unaware anything is wrong but the "downstream" doc has strong suspicions something is array?  Again, have to be careful, because suspicions can sometimes be wrong.  Nothing worse then telling a patient the doc at the last hospital screwed up, when in fact nothing wrong happened.  Not only bad for the physician but also for the patient/family who will always suspect something went wrong regardless of an independent review.  Gallagher touched on this reality in his article linked above.  Also, again, Galllagher, like the Antunez et. al article, suggested development of a collaborative disclosure process between healthcare facilities.

But what if there is no "collaborative" process between your hospital or nursing home and the "upstream" hospital or practice that referred the patient to you?  What if your hospital or nursing home does disclosure, but the hospital (or nursing home) across town is still stuck in the stone ages?  Patients have a right to know, and that right to know trumps concerns about referral income and certainly trumps physician paternalism. So, what should you do?  Moreover, if you don't somehow tell the patient or family, do you now become part of the cover up and expose you and your organization to liability? 

Please, understand I am not a lawyer and this column should not be construed as legal advice, but below are some thoughts on how to proceed in an ethical fashion.  Moreover, I encourage you to share this column with your attorney, risk manager, etc. 

1) Patients need to know information in a timely manner....it cannot be drug out throughout some bureaucratic process. If your hospital and the referring hospital or practice has a disclosure relationship as suggested in Atunez and Gallagher, great, use it - and do it quickly.  However, my opinion is at this point (Dec 2018) many cases of suspected error will have not happened between two facilities with this type of relationship.  We are still too early in the disclosure movement.  

2) If there is no collaborative disclosure process, think best how to proceed.  Every situation is different, so I can't write generic advice on December 12, 2018 that will speak to every possible case.  I imagine the first step is to somehow contact the referring physician or hospital, and see what they say and see how they behave. This will be a judgment call, as so many things are in medicine.   
 
3) If the referring physician or hospital cannot explain the care and/or will not talk to the patient, you must speak to the patient.  It's your ethical obligation.  You may first consider warning the referring physician or hospital that in X days you will spill the beans.  If you do need to disclose to the patient, do so in an honest and transparent fashion without sounding too overly biased: "Mrs. Jones, when I first looked at your records, I noticed the following issues and I now have the following concerns about your prior care.  I tried to contact the previous doctor/hospital/nursing home to share my concerns, but they did not adequately discuss the issue with me. I encourage you to go back to them and share these concerns, and see what they say.  You deserve to know the truth about your healthcare..."  

I will be curious for feedback and thoughts from you, our readers, on this challenging issue. 

Sincerely,

- Doug

Doug Wojcieszak, Founder and President
Sorry Works!
618-559-8168 (direct dial)
doug@sorryworks.net (direct e-mail)