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Legal Report: Openness and Caution in Disclosing Adverse Events

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Legal Report: Openness and Caution in Disclosing Adverse Events

By Tom A. Augello, CRICO

Related to: Disclosure + Apology, Emergency Medicine, Primary Care, Nursing, Obstetrics, Other Specialties, Surgery

A defense attorney’s perspective on telling patients what is known after an unexpected adverse event.

Commentators

  • Phillip Murray, Esq. Murray, Kelly, & Bertrand, PC Woburn, MA

Transcript

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 unintended 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.


January 1, 2008
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