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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  • DAnne Graham

    Beautiful and spot on. I am heading to grad school for Health Care Advocacy. This is the kind of change I want to be part of. Thankx, Kathleen, you made my day!

  • Paula Grove, RPLU

    As a medical malpractice Agent, I listen to doctors when they get a medical malpractice suit, and you are right, the doctor is scare and feels vulnerable. I listen to his or her point; this is very important. I show compassion and ask the doctor to show compassion to their patients too. Some doctors need to show their humane side too and be natural. I think it makes them better doctors and might exempt them from future suits or complaints. If a doctor if in a hurry to see his next patient, please stop take a deep breathe and spend a little more time with a difficult patient.
    As a patient, it is very important to me to have a good rapport with my own doctors. When a doctor apologizes for being late or any other complaint I might have, I back up when they do honestly apologize. I once was in a practice where the doctor was two hours late, when the doctor walked in, I said to him, “You are very late.” Instead of this doctor, explaining the reason of his lateness, he said, “You know, you can see other doctors.” I argued with him about his attitude, but it took me nowhere, this doctor was too much into himself. He was pitiful. I just learned he is moving to another state. It was about time.
    On the other hand, It is important for a doctor who is being served with a med mal suit to have a good Agent and Insurance Company who are going to help them to navigate with ease this suit. If a doctor feels that he or she did nothing wrong, discuss this with your insurance company so they do not settle. However, sometimes insurance company’s settle with the defendant to avoid higher expenses and a long trial. Remember, that during this time, you are going to spend a lot of time trying to defend yourself.
    Doctors should not suffer in silence if they think they might be sued. Call your Insurance Agent; he or she would be able to direct you to the right path.

  • Martin Young

    Here’s the rub! On an occasion that I contacted my malpractice insurers to inform them of a complication that could lead to a potential claim, I was told in no uncertain terms to stop all contact with the patient unless vetted by them. Or else I would not be covered.

    That is just not my style! I felt trapped behind a wall of silence that was created by my insurers. My instincts to right the wrongs as suggested in the post were forbidden by the only ones likely to profit from the situation – my lawyers!

    Damned if I do, damned if I don’t!!

    • Kathleen Clark

      Martin: How did you respond? Did you tell your carrier that you wanted to have the convesation with the patient/family as quickly as possible to save them, as well as you, the pain, agony, mistrust, disrespect and anger of waiting and wondering. The longer time goes by without that conversation/contact with the patient, the more resentment and mistrust grows and the more likely litigation will follow. In addition, it is your relationship with your patent that is being destroyed.

      I know you know this already, just suggesting an approach to a conversation with the insurer to move the process along quickly. The culture of the carrier has to shift; to me, the way to start that process is to have this type of conversation. If you are unsure about it and have a PERSONAL attorney (not the med mal attorney the insurer assigns), you could ask that person to advise you or advocate for you with the insurer.

      Glad to talk off line if you’d like. Not that you would want to do this, but here is something to consider: you could file what is called a declaratory relief action: you put the policy before the court and you ask the court if, under the language of the policy and the statutes, could a carrier refuse you a defense and indemnity. You also ask the court if the interpretation suggested by the carrier, as you set forth above, violates public policy. I cannot imagine a court NOT finding such interpretation as violative of public policy.

      Studies indicate the sooner you have the conversation/explanation, the less likely litigation will follow and the more likely you will learn from your patient and take that learning back into the healthcare system. You can provide the studies, statistics and anecdotes to your carrier.

  • Winnie Tobin

    Agreed. There are great opportunities to “do the right thing” (full disclosure and apology) immediately following an adverse event — it goes a long way toward healing for everyone involved. But, it may not be the end all. In our experience, patients and family members oftentimes don’t feel the full emotional impact of an adverse event until many months afterward. Patients and clinicians alike need to be educated on what they can expect down the road. They also need to know that they can and should expect emotional support and be given resources to access that support.

    • Kathleen Clark

      Thanks, Winnie. Unfortunately, nothing is the “end all” when medical error is involved. In situtions in which the patients/families don’t feel the full emotional impact for months (or longer), at least they don’t have the added burden of months of mistrust and growing anger over not knowing what happened. Instead, they may have had months of support/explanation/conversation in the healthcare system and their first-hand observations may have brought new learning and improvement into healthcare.

  • William Sullivan

    I was one of the physicians featured Kevin’s article that you cited.

    I was sued along with eight other physicians in a shotgun lawsuit. My only interaction with the patient was that I inserted an IV line in the patient at the request of the trauma service when no one else was able to get the IV line.
    So please tell me what “conversations with patients and families” I should have had to heal those patients and heal myself. At the same time, perhaps you could suggest the conversation that the doctor who was on vacation, who was also named in the same suit, should have had with the patient’s family.

    It is wonderful to keep communications open with family and patients. Your idea sounds nice in theory, but it really does the whole medical system a great injustice because it assumes that every adverse medical event is because something “went wrong.” Death is an inevitable adverse event associated with life. What “went wrong” every time a patient dies that doctors should discuss? And at what point should physicians deem an “adverse outcome” as an “error” so that they can engage in this “Golden Moment” discussion?

    A patient suffers a postoperative infection. Is this an “error” that requires a “Golden Moment” discussion? A patient has a severe allergic reaction to another medication even though there was no history of allergy to this medication. A trauma patient dies despite the best efforts that the trauma team can make. A patient suffers a stroke from a brain infection after failing to comply with a physician’s instructions for filling and taking antibiotic prescriptions. I could go on and on. These are all examples of lawsuits that I have seen. What “Golden Moments” should the physicians have with these patients and their families?

    Just curious, do you publish articles in legal journals advocating that attorneys have “Golden Moment” discussions with clients when clients suffer adverse events and lose their cases? If not, would you mind if I submitted your article to a few legal journals and changed the wording to advocate legal Golden Moments? All attributions to you, of course.

    • Kathleen Clark

      I do NOT assume everything that what went wrong is an error. I am suggesting a conversation with the patient/family whether a healthcare provider believes that something was an error or not. What is said in the conversation depends on the situation, of course. It doesn’t have to be a one-time only conversation, it can continue, as any investigation continues. It can be a one-time conversation in which the provder/physician explains why s/he doesn’t think it was an error, that it is a common side-effect, or whatever explanation fits the situation.

      I’m not clear on why you seem so angry and suggest “golden moment” conversations with legal clients when we are discussing medical error/adverse medical events. The term “golden moment” is attributed to Albert Wu, M.S. of Johns Hopkins and WHO (I believe), an internationally known and respected physician and paient safety advocate.

      As I said above, “everyone wants to do the right thing, the physicians and other health care providers, but they may not know how.”

      • William Sullivan

        I’m not angry and I’m sorry that you take my questions as being angry. I would like to learn from your experiences which I why I asked all of those questions. In essence, since you are the author of the post and since you noted that doctors “may not know how” to do the right thing, I am asking you “how” you suggest managing the situations above so that I can hopefully prevent myself from being named in future shotgun lawsuits.

        From your post:
        “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.”
        If you do not intend to infer to your readers that adverse events and errors are synonymous then you should make that clear in your posts. Even your web site doesn’t make that clear.

        If you don’t believe that adverse events and errors are synonymous, then you still haven’t mentioned whether there should be a limitation on which adverse events should be discussed and, if so, how to determine that limit.
        Ought medical providers have “Golden Moment” discussions about every single error regardless of how small? A patient gets medications delivered 10 minutes late in the hospital? A doctor doesn’t return a phone call while in church?

        You also haven’t suggested how doctors should approach patients/families in the situations I described. Answers to those questions would be excellent teaching moments for your readers. For example, after discovering that the patient died in my case (which was weeks later), how should I have approached the family regarding my limited involvement which allegedly was a causal factor in the patient’s death?

        And why do you take offense at having “Golden Moments” in the legal profession as well as in the medical profession? Wouldn’t you agree that such discourse and introspection would cut down on legal errors and legal malpractice cases?

        • Kathleen Clark

          William: I’m interested in knowing more about your situation. For instance, all eight of the physicians were working on the patient in the ER? Then, the patent died much later in time? Did he die of something associated with ER care? What kind of policy dos the hospital have regarding disclosure/discussion with patients/famlies? Was there something that went wrong in the ER? What roles did other physicians play? Did any of them discuss what went wrong with the patient/family? Was there a discussion among the eight of you?

          It sounds like it might be very useful to debrief on the situation. So, it was a wrongful death case? Do you all come from a healthcare culture of openness? or one of silence? or some combination? How did the case unfold: was there a trial? mediation? any opportunity to meet with the patient/family? or did it become too adversarial too quickly?

          As you mentioned, you have a lot of questions, which I might be able to help with if I had a better understanding of what you’ve been through. I think it is mostly about talking it through. That is the learning. Is any of this useful? Did you legal training help you in this situation? Any chance to sit down with the other seven physicians?

          • Kathleen Clark

            William: One other thought. It sounds like this was an emergency and that you were called in because someone else couldn’t get the procedure done? If there was some time, did anyone, any of the eight physicians, have an opportunity to have an informed consent conversation with the patient?

            I’d be glad to talk to you by email, if you’d like. I’m sure, even though you are an attorney, that, initially, it is very difficult to get past the language: negligently, wilfully, intentionally, maliciously, and more.

  • Marc Gorayeb, MD

    The author’s definition of the “Golden Moment” includes the idea that it happens “on the heels of an adverse event,” and that it includes, where appropriate, taking responsibility for the error, and compensation.
    With all due respect, you are writing to the wrong audience, putting the cart before the horse. Talk to the lawmakers. There would have to be a complex restructuring of the legal system for dealing with medical malpractice claims in order for this “Golden Moment” to exist. Until the legal infrastructure for this model is created, physicians will be imperiled by engaging in this approach without the guidance of their personal and their insurance company’s attorneys.

    • Kathleen Clark

      The good news is no change in the law is required.

      I believe the guidance of your attorney is always a good idea. However, if you have had professional development/training in this type of disclosure conversation, including discussion about what to say, not to speculate and care in the use of language, among other things, it is possible to have these conversations soon after a medical error MAY have occurred without the presence of an attorney.

      There is a process called collaborative law, which is non-adversarial and can be called into play by any party, i.e. physician, hospital administrator, patient, nurse, after adverse medical event. The process involves collaboratively trained attorneys representing parties who agree to make every attempt to settle the matter without litigation, creating the possibility of resolution that provides solutions other than money. For instance, the parties and their counsel take part in confidential conversations regarding the event, patients speak about their experiences, physicians answer questions, patients’ first hand observations are reviewed and considered, and apology and compensation are offered, as appropriate. This doesn’t require a court proceeding; rather, the parties make their own decisions about resolution of the case, with their attorneys advising them.

      This approach allows and encourages the maintenance, repair or strengthening of the patient-physician relationship, depending on the circumstances, and keeps control of the process in the hands of the parties.

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