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How Will Disclosure Affect Future Litigation?
Disclosure to patients of unanticipated outcomes is a directive and how it impacts future malpractice litigation are all areas of concern.
Disclosure to patients of unanticipated outcomes is a directive to the health care field given by the Joint Commission for the Accreditation of Healthcare Organizations (JCAHO) through the Patient Safety Standards. How disclosure is done, what impact it has both on the culture of the organization as well as on the patient, and how it impacts future malpractice litigation are all areas of concern for the health care provider and entity.
Responding to consumer and government pressure (especially the delivery of the 1999 Institute of Medicine report, “To Err is Human: Building a Safer Health System”), JCAHO added to its survey standards a requirement that each facility have a policy of full disclosure to their patients of “unanticipated outcomes” of care that would correlate to sentinel events.(1) The JCAHO Patient Safety Standards address the need for entity leadership to be focused on safety; for the facility to have processes in place to identify potential safety issues and to prevent reoccurrence; to inform patients and families about outcomes of care, including unanticipated results or outcomes; and to encourage patients to facilitate their own safety while in the facility and to report potential safety situations.(2)
The JCAHO standards encourage clear, objective communication within the team of caregivers, as well as with the patient and family. This includes verbal notification of an unanticipated outcome, discussion of plan of care issues and changes, and documentation of the key points of those conversations. In the language of JCAHO, “error” means an unintended act, either of omission or commission, or an act that does not achieve its intended outcome. A “near miss” is any process variation that did not affect the outcome but for which a recurrence carries a significant chance of a serious adverse outcome.
It is now imperative that every health care facility and physician practice develop and implement a medical error disclosure policy. The policy should reflect the philosophy that the patient and physician are to have an open and honest relationship, including a constant dialogue on the patient’s care, treatment, general health and wellbeing.
This policy should then be distributed to all applicable staff for inservice education. This education should focus on skills so that patient needs can be recognized even if the patient directs questions or concerns to personnel other than his or her treating physician. The policy should also indicate who documents the patient’s records when an unanticipated outcome, treatment plan change or other important information needs to be relayed. In most instances, this should be the primary treating physician, since studies have shown that most patients want to hear from their physician when it comes to important information (including negative information) about their health and treatment plans. In addition, the policy should indicate who (and what) should be documented in the patient’s records when a disclosure conversation takes place with a patient or family member.
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