To improve patient safety, lawyers need to embrace transparency too

To improve patient safety, lawyers need to embrace transparency too

How do we reduce medical errors?

It’s a question at the forefront of the minds medical and policy leaders today.  Entire books have been devoted to the subject, and there is no shortage of suggestions to improve patient safety.

Internist Danielle Ofri recently wrote a New York Times op-ed on the issue, where she reflected on a “near miss” she had during residency.

Like medical mistakes, near misses haunt doctors for for years after.

“For the past two years I’ve been interviewing doctors about the emotional experiences that have molded them,” Dr. Ofri writes.  “Though I was interested in the full range of emotions, nearly every single one brought up a medical error that they had been party to during their careers; many of them had never spoken about it before. The shame of their errors — including the near misses — was potent, even decades later.”

One way to approach medical errors is to remove the shame and openly discuss them.

The Boston Globe recently reported that Brigham and Women’s Hospital circulates an in-house publication discussing errors that occurred within the institution: “Brigham leaders started the publication to encourage staff to talk openly about their mistakes and propose solutions, and help make sure errors are not repeated.”

It’s a step in the right direction.

For more hospitals to be transparent, the environment surrounding medical mistakes has to be non-confrontational.  The threat of punishment makes many doctors hesitant to openly discuss adverse events.  Besides, punishing individual physicians isn’t likely to solve medical error root causes.

In a 2006 NEJM perspective piece, then-Senators Obama and Hillary Clinton pointed out that most errors aren’t necessarily the fault of doctors, but of failed systems: “We all know the statistic from the landmark 1999 Institute of Medicine (IOM) report that as many as 98,000 deaths in the United States each year result from medical errors. But the IOM also found that more than 90 percent of these deaths are the result of failed systems and procedures, not the negligence of physicians.”

While I agree with Dr. Ofri’s assertion that openly talking about errors needs to come from inside the medical world, she neglects another important factor: the medical malpractice system.  It’s confrontational, a quality that impedes openness. It’s also why some hospital lawyers encourage opaqueness after adverse events, not only within the medical community, but to patients as well.

And with the malpractice being such a traumatic experience, you’ll have to excuse some doctors if they aren’t so enthusiastic speaking openly about mistakes.

I’m certainly encouraged that physician leaders are beginning to speak up on mistakes and near misses.  But until our malpractice system encourages that same transparency and ceases to be adversarial, any gains in patient safety will continue to be limited.

To improve patient safety, lawyers need to embrace transparency tooKevin Pho is co-author of Establishing, Managing, and Protecting Your Online Reputation: A Social Media Guide for Physicians and Medical Practices. He is founder and editor,, also on FacebookTwitterGoogle+, and LinkedIn.

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  • Kathleen Kettles

    Kevin, I’m a nurse and plaintiff’s medical malpractice lawyer for the last 26 years. My experience has been that the system is harsh on everyone from the defendant physician, the plaintiff/patient and the attorneys. Going to trial is brutal and can be traumatic for the participants. I’m a big proponent of programs like Rush Presbyterian and Drexel which promote early identification of mistakes, apology and/or explanation, and prompt and fair compensation. These programs use both plaintiff and defense attorney’s as the mediators. However, I’m also a proponent for overhauling health care provider discipline systems which for minor mistakes, which don’t cause actual harm, usually provide monetary penalties which do nothing to alter the competence level of those fined. In representing professionals, where there has been a mistake, the prosecutor and I found courses that directly deals with the mistake made in order to help make another mistake less likely. This isn’t always possible, but it’s a step in the right direction and disciplinary systems need to change.

    I don’t think anyone believes that doctors should just go to the patient and fess up. This is also about reforming systems for mistake identification and a process which destigmatizes the event and promotes transparency within the institutions and, ultimately, includes the patient and their family.

    • SBornfeld

      Could you give an example of actions you have developed with prosecutors to make further mistakes less likely?

      • Kathleen Kettles

        A nurse left a patient, who was place on a “one on one” because of suicidal ideation, to go park her car. Her explanation was that there was a policeman also present outside the patient’s door. I found a course dealing with suicide in hospital patients and we incorporated this into the order. Another nurse, fell asleep, allowing a CP patient to flip out of his crib, which had the rail down, we tailored the order to include both a course on fall safety and a prohibition on working more than a certain amount of hours. This nurse was going from a day job to a 12 hour overnight. There are more examples.

        • SBornfeld

          This was part of a consent order involving the board?

          • Kathleen Kettles

            yes, since all consent orders have to be approved, why do you ask?

          • SBornfeld

            I was frankly unaware of plaintiff attorney requesting action against a licensee–I thought that these were generally handed out by state attorney or licensing board.
            Would you mind telling me in what state you practice?

          • Kathleen Kettles

            You misunderstand, I wasn’t requesting anything, or acting in the capacity as a plaintiff’s attorney. Since, I am an attorney with a health care background, I am asked to represent health care providers which I have done. Plaintiff’s attorney’s are also asked to represent physicians in situations where the alleged malpractice may result in an award larger than the providers insurance coverage and and so physicians are advised to retain personal attorneys to represent their interests. I have done this several times and made sure that the insurance company and the defense attorneys acted in the best interests of my client. The fact that I happen to primarily practice as a plaintiff’s attorney doesn’t render me unable to properly and zealously represent health care providers.

          • SBornfeld

            Interesting–thanks for the clarification. I’ve known a few malpractice attorneys–to the best of my knowledge, none of them worked both sides of the fence.

          • Kathleen Kettles

            I also worked for a defense firm when I was in law school and wrote, what they used to call, panel papers, defending the medicine. I think to be a really effective malpractice attorney you have to see both sides of the fence. There are quite a few nurse attorneys who work in the malpractice field, for both plaintiffs and defendants, who do disciplinary work. I think, as do some of the disciplinary insurance providers, that attorneys with a healthcare background, are in a better position to help the provider with a discipline problem.

        • querywoman

          Doctors don’t fall asleep? Not relevant to this thread that much, but I stayed with a friend in a general ER once after a suicide attempt.
          The staff didn’t want me to leave her. Sure, it was there job, but it always helps to have an extra person, especially a friend. Her 2 young sisters and she had an argument and then she did it.
          I drove her to the ER. They came while she was there. She did not want to see them.
          I got a parking ticket. My meter ran over. She was too ashamed to go to the hearing with me. I explained circumstances and got out of it. I would have appealed if I hadn’t.

  • rbthe4th2

    When a simple “I’m sorry, we’ll see what we can do to prevent the mistake again” is too much, that’s why you see people sue. Even for frivolous stuff, its because of the perception. There does need to be a way that simpler mistakes can be dealt with between docs, hospitals, and patients.
    While time and time again, studies have shown that people can deal with minor stuff, doctors, hospitals, and administration refuse to work in that genre so that those docs/hospitals who truly need to be put out of business are and lawyers/courts drop anything that isn’t truly malpractice.
    I’ve had several of my docs and related practioners make mistakes. I said hey can you fix this, and many did. I never felt the need to high tail it to a lawyer.
    At the same time, I had one that crossed the boundaries. Myself and others are thankful we’re no longer with them. The system should have policied this doctor and didn’t. Transparency? Ha ha! It must come from everyone, not just lawyers, but also docs/hospitals/admins AND patients.

  • petromccrum

    I couldn’t agree with you more, rbthe4th2. Most people will accept a sincere apology and efforts to correct a mistake. Many people resort to lawsuits because they get the opposite; denials and no resolution.

  • SBornfeld

    George Carlin (musing about close calls and airplanes)…”Why do they call it a ‘near miss?’ Shouldn’t it be called a ‘near hit’?”

  • hadhag

    Without revelation of clinical outcomes (medical, surgical, prevenatitive and palliative) doctors will never be able to practice morbidity and mortality review and improve underperforming physicians, health care providers and institutions. What’s needed is med mal reform, not to curb defensive mediicne, but to allow tabulation and revelation of clinical outcomes in order to improve the safety, efficacy and costs of medicine, without simply suing underperforming doctors and health care providers scrubs off.

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