A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).
In an accompanying editorial, this anecdote was attributed to an attorney:
"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).
"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.
For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).
It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).
A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).
Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).
In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.