Kathleen M. Mazor, EdD; Steven R. Simon, MD; Robert A. Yood, MD; Brian C. Martinson, PhD; Margaret J. Gunter, PhD; George W. Reed, PhD; Jerry H. Gurwitz, MD
Top. Numbers are percentages of respondents expressing agreement. Bottom. Numbers are mean ratings (1 = most negative response; 5 = most positive response).
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Cittadinanzattiva Via mecenate 25 20138 Milan Italy
April 13, 2004
Patient complaints, disclosure of medical error and litigation
We fully agree that patients want to be told of medical errors even if there is nothing that can be done about them (1). Our independent patient's agency analyzed 100 written complaints of people about the reasons for complaining or taking legal advice. Thirty six out of 100 people wanted compensation, 18 an explanation, 14 wanted that it would not happen to anyone else, 12 that the doctors would be disciplined, 11 only for legal advice, and other reasons. We advise and encourage patients to report their complaints also to the local Health Authority: only 38, of 100 complaints we received, were reported from citizen to the hospitals' public relation offices. Twenty two were the written replay and explanations from the Institutions, sometimes with expressions of regret without acceptance of responsibility or an apology. Some doctors invited patients or their relatives to debate the case, but many people refused to meet the doctors: they do not trust them. Patients want that their complaint will be handled by an independent Agency. Unfortunately, in Italy, the National Health Service does not support a patient representative. As you wrote, decisions to seek legal advice were complex and were not necessarily deflected by a late full disclosure.
1. Mazor KM, Simon SR, Yood RA, Martinson BC, Gunter MJ, Reed GW, Gurwitz JH. Health plan members' views about disclosure of medical errors. Ann Intern Med 2004; 140: 409-418.
Roberto Natangelo Retired Physician. Cittadinanzattiva ( Active Citizenship. Via Mecenate n. 25. 20138 Milan. Italy) e-mail: roberto.natangelo @ libero.it
Eric N Grosch
June 1, 2004
-Health Plan Members' Views about Disclosure of Medical Errors
The Fifth Amendment protects the individual from an obligation to be a witness against himself and creates a tension with the physician's duty to disclose errors to patients.
Tension likewise stands between the physician's accepting the risk of treating a sick patient and the urge to secure justice that a patient or his family may feel by making the perceived architect of the patient's misery suffer as the patient has suffered. Russell said:
The reformative effect of punishment is a belief that dies hard, chiefly I think, because it is so satisfying to our sadistic impulses.
In the vignettes, clinicians cannot readily conceal their errors as the affected patients could probably discern a connection between error and consequence, so circumspect clinicians would probably consider their chances poor of leaving victims none the wiser by not disclosing.
In contrast, in another (hypothetical?) nightmare-vignette, the consequence of an error of omission was lethal but the clinician, motivated, however venally, by self-preservation, covered it up.
Such a clinician may consider the instruction to parents, aboard airlines, in case of loss of cabin-pressure, to hold the oxygen-mask to one's own face before doing so for an accompanying infant. By analogy, the clinician may feel justified in concealing his clinical error on the basis that he erred but without nefarious intent. In the interest of the greater good of serving other patients in need, he may justify his non- disclosure by the need he perceives to survive financially.
Bosk, the medical sociologist and merchant of sanctimony, in his influential book on his study of a surgical residency, admitted his desire to preserve himself and his field of investigation by concealing from patients and their families the clinical errors that he had understood surgeons had committed, lest he poison his successors' path by blowing the whistle.
Even when the clinician commits an error, it often fits the description of Berwick's analogy. The injustice of penalizing a physician heavily for no more serious a mental lapse than returning a borrowed item to the wrong place, though it may have more serious consequences, demonstrates why the argument that the penalty must fit, not the error, but the consequences of the error is an illustration of why the argument from consequence is a fallacy and why tort-law reform should distribute risk more equitably by making the informed consent, containing a human-error clause, a binding contract.
Eric N. Grosch, MD
1. Russell B. Ideas That Have Harmed Mankind. Girard, Kan. E Haldeman- Julius, 1946
2. Anon. Education and debate: An ethical dilemma: Medical errors and medical culture: An error of omission. BMJ. 2001 May 19;322(7296):1236-1240
3. Bosk CL. Forgive and remember managing medical failure. Chicago, University of Chicago Press 1979, pp. 199-200
4. Berwick DM. Not again! Preventing errors lies in redesign not exhortation. BMJ. 2001 Feb 3;322(7281):247-248
5. Walton DN. Argumentation Schemes for Presumptive Reasoning. Lawrence Erlbaum Associations, Mahwah, NJ, 1996
Physician with financial interest in tort-reform in medicine
Mazor KM, Simon SR, Yood RA, Martinson BC, Gunter MJ, Reed GW, et al. Health Plan Members' Views about Disclosure of Medical Errors. Ann Intern Med. 2004;140:409-418. doi: 10.7326/0003-4819-140-6-200403160-00006
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Published: Ann Intern Med. 2004;140(6):409-418.
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