Legal Report:
Openness and Caution in Disclosing Adverse Events
[Narrator]
During the CRICO/RMF Surgical Summit in Boston, presenters and attendees explored
the complexity of disclosure and apology. Panelist Philip Murray is a member of
the law firm Murray, Kelly & Bertrand in Woburn, Massachusetts, which often
defends Harvard providers in malpractice suits. From the perspective of 30 years
as an active trial lawyer, Attorney Murray explained his support for open disclosure
of adverse events—with some caveats—in this month’s Legal Report.
[Philip Murray]
I might have a little bit of a different take on it as an attorney who defends cases,
and I know that the perception—the common perception—is that attorneys are always
in favor of not saying anything, keep your mouth shut. That, really, I don’t think
is the truth.
I think the defense counsel have long favored disclosure, but when we talk about
true and honest disclosure, we have to talk about informed disclosure, disclosure
with all the facts known and not a rush to judgment or a rush to throw someone else
under the bus or to get out from under what is a horrendous situation that may have
developed.
Complications that can occur and will occur in the best of hands certainly need
to be disclosed, and disclosure of any unexpected, unintended outcome is required.
Certainly, it is required ethically, it is required by the regulatory standards.
It is actually legally required as well. Patients must be informed that they have
had an intended result. The information that that has occurred should be provided
to the patient very quickly.
But providing to a patient the information that they have had an unexpected or unintended
result doesn’t necessarily mean that the full story is told because the full story
may not be known. In fact, the question that was asked of me was am I aware of circumstances
where the failure to tell the complete story early on has complicated the defense
of a medical malpractice case? And frankly to that, I would say no. The failure
to disclose a complication will certainly complicate a malpractice case later when
it becomes known that a complication occurred and it wasn’t disclosed. However,
the failure to tell the complete story early on is not required or expected by anyone.
What’s required is the disclosure that something has occurred, that it is of concern,
that it needs to be addressed, and in the immediate aftermath of an occurrence,
some description as to what needs to be done to address this problem, how it’s going
to be dealt with, and the fact that the underlying cause and long-term ramifications
of this will be investigated and will be explained to you, the patient, at some
point in the future.
It is not necessary to give or even attempt to give, and it can be very harmful
to attempt to give, some full or purportedly full or complete explanation early
on. Very often explanations given without all the facts are inaccurate; very often
rash explanations are given that truly don’t do anyone—the patient or the physician—any
good.
I had an example of a situation where I represented a physician who was doing a
C5-6 fusion in a patient who had previously had such a fusion, but it broke down.
During the operation to re-fuse C5-6, intraoperative films were obtained and a marker
was placed, and Radiology then labeled the marker as at C5-6 and surgery progressed,
and everything seemed to be fine. But the following day when the films were reread
by a more senior radiologist, it was found that the label was really at C4-5.
So the surgeon went in and told the patient ‘we’ve erroneously operated at C4-5;
we have to reoperate at C5-6.’ And that disclosure as far as that went would have
been fine: ‘Here’s the problem, it’s an error. We are going to find out why. We
need to reoperate. We need to take care of the problem that we had to address.’
But unfortunately, the surgeon didn’t leave it there. He went ahead and said ‘because
Radiology screwed up the interpretation of the film and I was misled.’ Which, as
it turned out, isn’t really a full and honest and accurate explanation for the error
since the films were available to the surgeon, and he certainly could have detected
the error and, in the experience of a lot of people who looked at the case afterwards,
should have detected the error. While certainly a radiology tech had made an error,
so had the surgeon.
So in the attempt at full explanation, which was in part the truth, what really
aggravated the patient more than helped the situation, got the patient so infuriated
because she expected that her faith and her trust was in the surgeon. He had never
disclosed to her before the surgery that he was going to be depending on radiology
techs to determine where he was going to be operating.
Ultimately, the suit that was filed didn’t even include radiology or the tech. It
only included the surgeon, which was where all the anger rested. And the case ultimately
had to be settled. It probably would have resulted in some settlement at some point
even with properly timed disclosure and disclosure as the facts all became known.
But the rush to place the blame on someone else created such animosity that settlement
wasn’t accomplished before suit was filed and ultimately when settlement was accomplished,
it was probably at a higher level than it would have been.
Initially disclose the complication, the unexpected result, and what will be done
for the patient. Then as time goes on, disclose why it happened, how it happened,
what the long-term results will be. Only in the rare, hopefully rare instance, a
percentage of cases where that complication was the result truly of a medical error,
should that ultimately result in an apology, which in any case of clear error when
that’s ultimately determined to be the case, apology is something that I think all
defense counsel would agree with and suggest should be done.
It’s just a matter of the timing.
