The Golden Moment in medical malpractice

As Kevin Pho pointed out in his piece, “How malpractice hurts doctors and their future patients,” physicians who have been through trial are often never quite the same.

Physicians who have been sued in medical malpractice case are often referred to as the “Second Victim,” a term that says it all.   When a mistake is made and a patient is injured, the physician also suffers, often in silence and anxiety.   Being served with a complaint has to be devastating, with its harsh and unforgiving language: the physician  negligently, willfully, intentionally,  and/or recklessly injured her patient.

There is no doubt that mistakes causing harm hurt all the way around; it’s not just the future patients, it is the harmed patient or the patient’s family  that has to go through litigation and, possibly, trial.   Think of the mistrust and anger that builds and builds, day by day, in the patient as the litigation process unfolds while the patient waits and hopes for answers and explanation.

I want to talk about another descriptive term, first used by Albert Wu, M.D., less commonly used in situations involving known or suspected medical error: the “Golden Moment,” a window of opportunity, literally, on the heels of an adverse event: the time to disclose, to communicate with the patient, or the family, about what went wrong, to answer questions, to listen to the patient/family’s experience, to express sorrow and condolences, to take responsibility for the error, and to compensate.

In addition, the Golden Moment provides an opportunity to improve patient safety, to inform the patient that anything learned directly from the patient and/or the adverse event will be used to prevent a similar event in the future to other patients, to take that learning into the future to help others. It is the best possible time to inform and respect a patient/family, generally in shock, disbelief and grief. Referring to disclosure after vision loss, John Potter wrote, “We discovered that some patients grieve over vision loss, and even loss that may not seem clinically significant can be unexpected for patients and lead to grieving. This understanding became the cornerstone of our [disclosure] program.”

The Golden Moment is often lost due to inadequate training, defensiveness, loyalty to others, such as the hospital or other physicians, disputes with insurers, the culture of many healthcare organizations and groups, and/or the fear of litigation/liability/reporting. Everyone wants to do the right thing, the physicians and other health care providers, but they may not know how.   As a result, they remain silent after possible medical error, literally, suffering in silence, watching and waiting to be served with a lawsuit.   Why not takes the kinder, gentler way? Don’t let the Golden Moment pass you by.  Learn how to have those conversations with patients and families quickly to heal not just the patient, but yourselves.

Don’t wait for the adversarial, acrimonious legal system to take you down a road from which you can’t come back, from which you’ll never quite be the same.

Kathleen Clark is an attorney who can be reached at Servant Lawyership.

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