Medical Error, Ethics, and Apology

By Richard George Boudreau

Ethicists and medical scholars agree that adverse medical events should be disclosed to patients and families. However, defining what constitutes a medical error can be difficult.

Richard George Boudreau, a maxillofacial surgeon, bioethicist, attorney, and forensic expert, examines medical errors and adverse medical events – as well as how apologies and disclosures can actually reduce litigation costs. Get the answers to questions such as:

• Why is litigation the wrong way to deal with medical error?

• What has led to the medical culture of deny and defend?

• How can disputes be resolved without litigation?

• Can communication and resolution programs be more effective?

The book contains a history of medicine, medical errors, and litigation; outlines what philosophers have said about medical error; and contains case studies on what to do and what not to do.

• Language: English
• Publisher: Archway Publishing
• Release date: Jun 25, 2020
• ISBN: 9781480890602

Richard George Boudreau

Richard George Boudreau is a maxillofacial surgeon, bioethicist, attorney at law, and forensic expert. He has earned numerous academic credentials, including MA, MBA, DDS, MD, JD, PhD, PsyD degrees. He holds several fellowships and is on the faculty of the U.C.L.A. Department of Oral and Maxillofacial Surgery. He volunteers as a teacher and is passionate about health care, law, theology, philosophy, education, and public policy. He is a regular bioethics contributor to several magazines and newspapers and has written several other books.

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Copyright © 2020 Richard George Boudreau.

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ISBN: 978-1-4808-9061-9 (sc)

ISBN: 978-1-4808-9059-6 (hc)

ISBN: 978-1-4808-9060-2 (e)

Library of Congress Control Number: 2020908336

Archway Publishing rev. date: 6/23/2020

CONTENTS

FOREWORD

PREFACE

INTRODUCTION

DEFINING MEDICAL ERROR

A Myriad of Definitions

Medical Error—By the Numbers

A HISTORY OF MEDICINE, MEDICAL ERRORS, AND LITIGATION

A Brief History of Medicine

The Growing Cult of Secrecy: The Inability to Disclose

To Err Is Human: Opening the Pandora’s Box of Adverse Events

Legal Briefs: The Link between Medicine and the Law

THE ETHICS OF PHYSICIAN DISCLOSURE

Obligation to Disclose: The Philosophers of Ancient Greece

Hippocrates: Foggy Approach to Error Disclosure

Ethical Models Today

MEDICINE, APOLOGIES, AND LITIGATION: THE PRESENT

Deny-and-Defend: A Culture of Secrecy

Sorry, Not Sorry: Practitioners and Difficult Apologies

The Impact of Not Sorry on Patients

The Impact of Not Sorry on Physicians

ANATOMY OF AN APOLOGY

Definition

Benefits of Apologizing

The Art of Apologizing

Types of Apologies

A Reluctance to Own Up

Apology Laws—Do They Work?

THE FAILURE OF MALPRACTICE LITIGATION

ADR, MEDIATION, AND ARBITRATION

Defining Alternative Dispute Resolution

Mediation

Arbitration

ADR in Light of Medical Error

COMMUNICATION-AND-RESOLUTION PROGRAMS

Rick Boothman, Defense Attorney

Anatomy of a CRP—CANDOR

CAN DISCLOSURE WORK? CASE STUDIES

University of Michigan

University of Illinois at Chicago

COPIC

Additional Research

Successes and Challenges

Effectiveness and Rollout

The Disclosure Process

All Disclosure, All the Time

APOLOGIZING AND LITIGATION

What Wronged Patients Need

Steps of an Effective Apology

Empathy

Necessary Training

Involving the Patient

Sorry Works! To an Extent

Implementing Enterprise Risk Management

DISCUSSION

REFERENCES

FOREWORD

Poor or unexpected medical outcomes have become a lightning rod for blame and litigation, especially if communication of essential information is lacking. In this age of advanced technology in the diagnosis and treatment of disease, what appear as medical errors are compounded by our dysfunctional and largely impersonal healthcare system. The latest pharmaceuticals and treatments developed for the multitude of genetic and epigenetic issues we face are too often sullied by the media, while ignoring inherent dangers and consequences (read as the frequently understated black box warnings).

With the enormous explosion of technology comes an overwhelming amount of information and disinformation. With the erosion of the nuclear family and the present political divisiveness, there is loss of trust and conviction. Litigation has become a reflexive solution to our ills with its frustrations and siege mentality in which we find ourselves. This is especially true of the physician, who has the demoralizing task of working with an electronic health record that steals time from patient care, education conferences and even lunch. The corporate takeover of healthcare with the complicity of the health insurers and the laissez-faire attitude of our government concerns itself primarily with the bottom line.

Dr. Richard Boudreau is absolutely correct with his analysis of our failure of medical error disclosure: in the present conspiracy of silence with its deny and defend mantra that largely permeates our medical world, the path toward empathy must begin with the acknowledgement of a bad outcome. I’m sorry should not suggest guilt but must be timely and freely offered with the best information. Hospitals and personnel must have a mechanism to acknowledge a complication with follow through until all pertinent discussions are completed. Legal reform is needed, so litigation due to this conspiracy of silence and inordinate delays for justice can be overcome.

Dr. Boudreau explains so well the hazards and delays of litigation, the mechanics of mediation and arbitration and the no-fault approach offered by the COPIC Insurance Co. Corporations that mandate mediation and/or arbitration too frequently have an unfair advantage in winning cases (e.g., Kaiser, other HMOs, hospitals) as they have ready access to the best legal minds.

To coordinate the ideal program of forgiveness, a healthcare system must allow transparency with the mechanism for acknowledging the injured, cover their recovery and possibly compensate them (with a review board); no-fault insurance does not work as it is too readily gamed. Physicians, especially overworked residents in training, may spend 10 minutes or less daily in direct patient care and too much mandatory documentation. Nurses are also engaged too long at the computer documenting charges and not enough time with the patient. Medical workers must be relieved of this repetitive and wasteful electronic burden. By allowing physicians and nurses the necessary time for a meaningful relationship with their patients, medical error should diminish and outcomes improve. The wall of silence must be replaced with better communication and easily accessible information that allows the patient to heal and have the confidence that healthcare should offer.

Dr. Boudreau has created a classic treatise with his book Medical Error, Ethics & Apology. Hopefully, a future revision can highlight the subtitle, It Is Always Safe to Say You’re Sorry.

Jerome P. Helman, M.D.

Board Certified in Internal Medicine and Gastroenterology

Adjunct Assistant Professor in the Providence John Wayne Cancer Institute

[e-mail]

PREFACE

Deny-and-defend, as exemplified by the story of Beth Daley Ullem and the death of her newborn son from medical error, is a common way in which physicians and health-care organizations deal with the fallout from medical error. The problem, however, with the deny-and-defend stances is that failure to acknowledge a medical error to a patient or to apologize for it (with appropriate compensation) is likely to lead to a costly, ongoing lawsuit that neither patient nor physician can afford.

Today’s ethicists and medical scholars agree that disclosure to patients and their families in the aftermath of an adverse medical event is required. The problem, however, is that defining what exactly medical error is can be difficult. Furthermore, the practice of medicine is inherently dangerous. And finally, the history of both medicine, and medicine and litigation, continues to ensure that physicians and hospitals are likely to keep mum in the face of an adverse medical event.

It shouldn’t be that way, however. This book examines the concept of medical error / adverse medical events and how apologies and disclosure can help ultimately reduce litigation costs that could be inherent in such a situation. The book examines why litigation is an absolutely wrong way to deal with medical error and delves into the practice of apologizing. Other topics focused on include the culture of deny-and-defend, different methods of resolution other than litigation, and the effectiveness of communication-and-resolution programs. The ultimate focus of this book is that, while simply saying, I’m sorry, is a good step when it comes to preventing litigation in the face of a medical mistake, that apology needs to be delivered correctly (through training) and should be part of a formal disclosure program for it to be effective.

INTRODUCTION

When Beth Daley Ullem’s newborn son, Michael, died from a medical error, she was understandably devastated. No one expects to go into a hospital to give birth only to come out of that experience without a baby to hold, love, or nurture. However, when her baby died, all Daley Ullem wanted to know was why it happened. She wanted an investigation into what went wrong and why the situation happened and an assurance from both the hospital and her doctors that actions would be taken to prevent the same errors from happening again to other families. A lawsuit was the last thing on her mind; her goal was simply to understand how you’re going to improve and protect families (Smith, 2019).

Rather than getting a straightforward explanation and apology, however, Daley Ullem was stonewalled from getting any kind of information from the start, with an attitude she dubbed as complete deny-and-defend. The hospital offered no investigation, no answers, no apology, no assurance of improvement, and no indication that the error wouldn’t happen to another family. To make matters worse, Daley Ullem learned that the event was hidden from the hospital’s quality department. To me, that was going from error to insult, she commented.

Plus, this particular hospital in question didn’t have an exactly stellar record when it came to similar events. As a former claims processor for a consulting firm, Daley Ullem was well aware of this institution’s poor record of medical errors and costly claims. When her son died, Daley Ullem recognized the pattern of claims against the hospital as well as the conspiracy of silence surrounding the event.

After her son was buried, Daley Ullem tried to get to the bottom of what had happened to him, both because she wanted to know and because she hoped to prevent similar issues from happening to other families. The response she received, however, was less than exemplary; she was told sometimes bad things happen. Beyond that, nothing more was said. Furthermore, insult was added to injury as the hospital continued sending bills to her for her $90,000 cesarean section. In short, Daley Ullem lost her child, she was never told why the incident happened, her attempts to get to the bottom of the situation were met with silence, and then the hospital decided it was a good idea to bill her for services. All this prompted her to make the difficult decision to sue the institution.

Suing the hospital also led to some interesting events—for one thing, the hospital actually went out of its way to destroy Daley Ullem’s computer records and fetal monitoring strips (Smith, 2019). The good news for the bereaved mother was that she won the day and put the $4 million settlment into a fund to be used for projects and promotions related to a communication-and-resolution program (CRP).

In telling her story, Daley Ullem reiterated, several times, that the last thing she wanted to do was sue the hospital. All she wanted was answers and an apology. The hospital, however, didn’t issue either of those, going out of its way to make life more difficult for her, the result being that she felt she had no choice but to take legal action in an effort to get some answers. In the aftermath of the suit and victory, she pointed out that patients aren’t looking for perfection, but they do want a commitment to patient care and honest communication, especially in the aftermath of an adverse medical event. I think people are remarkably forgiving if you say right away, ‘here’s what happened, here’s what we’re going to improve, and we’re not going to hide from you.’

While Daley Ullem’s situation might seem somewhat extreme when it comes to the treatment of physicians or hospitals in the event of an adverse medical error, it’s common for silence to be the response, along with a lack of accountability. Most health-care organizations tend to be opaque and nonforthcoming when it comes to admitting wrongdoing and apologizing for it when adverse events take place. This flies against ethical and moral obligations we have as human beings to each other when we have inadvertently wronged someone else.

The practice of medicine might seem to be, on the surface, one that is exotic and certainly one that can be dangerous and risky. Physicians and other health-care providers carry a great deal of responsibility when it comes to caring for patients and ensuring their continued good health. Yet, when it comes right down to it, health care is an industry, one that delivers services to meet the demand of patients. That service is offered for payment, whether that payment is self-pay or through a third-party payer. Yet when a mistake takes place in other industries, those who have made the mistake will apologize, explain what happened, and rectify it (through some kind of compensation mechanism, such as giving the customer his or her money back). If the business owner and employees are especially forthcoming, they’ll also let the customer know that steps will be taken to ensure the mistake doesn’t happen again. This is a necessity as a business, especially in this day and age of social media; they don’t want to lose business because of an inadvertent mistake.

However, in the health-care universe, when an adverse event takes place, one that might affect the patient’s quality of life or even lead to that patient’s death, the patient and his or her family might end up in a position that is similar to Daley Ullem’s. In other words, the patient or his or her family might face a wall of silence, the pretense that nothing happened and no one is to blame for it. The health-care establishment, and physicians working for it, might deny involvement with the error, while continuing with business as usual—the end result being little to no improvement, more mistakes being made, and bewildered patients or families. And as in the case of Daley Ullem, frustration with that attitude and philosophy tends to lead to litigation, meaning lawyers become involved, and the issue and pain are dragged out over time as the process moves from discovery to depositions to an eventual trial by jury. This is no way to run the health-care industry, and it doesn’t have to be this way.

Certainly, when a health-care practitioner makes a mistake or error, the corrective measure often involves more than some kind of refund. The extent to which medical errors can maim or otherwise compromise the patient’s quality of life is both grand and far-reaching; that disclosure is not always forthcoming speaks to a multitude of personal and legal troubles the responsible party wants to avoid. For this reason, most patients harmed by medical error actually never learn about that error (Disclosure of Errors, 2019). Physicians tend to judge the importance of an error—and subsequent disclosure—based on whether it actually causes harm to the patient (Chamberlain, Koniarus, Wu, and Pawlik, 2012). If an error doesn’t seem to create any harm, they might be thinking, there is no reason to acknowledge it happened.

Another reason for silence in response to an adverse medical event is that there are few, if any, systems in place that allow acknowlegdment of errors or allow those who have committed the errors to take responsibility for them. Instead, more often than not, the focus is on assigning blame for the mistake rather than on a sincere effort to find out what caused it and how to prevent that mistake from happening again.

The end result is what Daley Ullem faced: the deny-and-defend culture, one in which errors that are committed are swept under the rug and kept quiet. The potential repercussion of such errors, combined with the litigious society in which we live today, as well as the secrecy surrounding the health-care industry, means the admission of a mistake is going to be more the exception than the rule.

However, weighing the risk of potential litigation while at the same time respecting the patient’s ethical right to know the truth presents a dichotomy that may be equally resolved with a simple two-word phrase: I’m sorry. After all, when nonmedical businesses offer apologies for errors, most customers are forgiving.

As mentioned, however, the health-care industry is different. Certainly, reason dictates that a simple apology from a health-care provider to a patient for wrongdoing could help diffuse the problem and hopefully not bring the whole situation to the