Doctors and hospitals are learning to disclose their mistakes. Patients often respond with lowered demands for damages.

By Valerie Reitman, The Los Angeles Times, March 24, 2003

When Duke University surgeons last month transplanted an incompatible set of organs into teenager Jesica Santillan, who would later die, the doctors and hospital publicly confessed the mix-up and apologized.

Such candor is part of a growing trend among hospitals to own up to the truth when patients are harmed by the medical care that is supposed to help them. Saying "I''m sorry," along with acknowledging the error, can also help ease the pain for patients and their families.

Not only is it the ethical thing to do, hospitals that are doing it say, but some studies show that it also pays off financially: The patients still may sue if they feel the hospital doesn''t offer enough compensatory damages, but they may seek less money. An analysis of settlements made by the Veterans Affairs Hospital in Lexington, Ky., which has fully disclosed errors since 1987, found that its liability was no higher than comparable veterans'' hospitals without a full-disclosure practice. An analysis in the Annals of Internal Medicine in 1999 concluded that the medical center''s honesty and compensation policy diminished the "anger and desire for revenge that often motivate patients'' litigation." The federal government, which operates the Veterans Affairs Hospital, also saved in legal defense fees.

The American Hospital Assn. and its accrediting agency maintain that physicians and hospitals are ethically obligated to disclose everything that happens in a patients'' care, including mistakes.

Nevertheless, it often doesn''t happen. Hospitals and physicians fear disclosure will prompt legal action and damage the reputation of the institution and its physicians. The instinct is to say as little as possible.

Medical errors happen surprisingly frequently in hospitals: An Institute of Medicine report in 1999 estimated that 48,000 to 98,000 errors occur every year. Most common are medication mistakes: giving the wrong drug or the wrong dosage perhaps at the wrong time. But doctors also have vastly misdiagnosed conditions, amputated the wrong limbs or breasts, been provided with incorrect pathology reports and left instruments or cotton at the site of the operation. In addition, an estimated 90,000 patients a year in the U.S. die of infections they acquire in hospitals, many of which are preventable, according to the federal Centers for Disease Control and Prevention.

In 1998, a Marin County surgeon performed bypass surgery on the wrong artery of actor/comedian Dana Carvey. The physician attached a healthy segment of Carvey''s artery not to the damaged arterial section nearby but to a healthy diagonal vessel. A few months later, Carvey had to undergo an emergency angioplasty to clear the dangerously clogged artery that hadn''t been repaired. He sued for $7.5 million. What he wanted, he said in a television interview describing his ordeal, was an apology from the doctor and an acknowledgment that the surgeon had erred.

Said Carvey, "It was only because in his deposition he said, ''I didn''t make a mistake.'' Total, you know, denial. So I had to" sue, Carvey said in the interview. Instead, the doctor''s attorney claimed in court papers that the doctor could have been misled by the unusual anatomy of Carvey''s heart. But Carvey''s second surgeon said in the same interview that Carvey''s anatomy was "pretty ordinary." Carvey, through a spokesman, declined to comment for this article.

Jill McDonell, a Los Angeles attorney who has represented consumers in medical malpractices cases, concurs. "Clients say they never would have sued, they are just so angry when they [medical officials] deny it. Particularly in small suits. If the guy left their baby brain-dead, they probably would still sue. But in a smaller case, they figure if he can''t even give me an apology, at least he can pay for his damage."

Patients want answers

Patients are looking for three things when mistakes happen, says Leonard Marcus, director of the Program for Health Care Negotiation and Conflict Resolution at Harvard University''s School of Public Health. They want to find out what happened, get an apology from the doctor or hospital and be assured that the mistake will not happen again. Marcus and his research team formed these conclusions after analyzing several dozen mediations between patients and caregivers after the patients filed complaints with the Massachusetts medical board that oversees physician licensing and discipline.

"There are positive outcomes in immediately sitting down and talking to patients and family after the error," Marcus said.

In one complaint, for example, a young child stuck herself on a discarded syringe. The mother had complained to the state medical board but wasn''t interested in winning monetary compensation so much as preventing similar incidents. The doctor assured her that the wastebasket where the syringe had been discarded had been placed high enough that the incident wouldn''t be repeated.

Marcus coaches physicians attending the Public Health School to say, " ''I''m sorry about the outcome,'' and ''Let me explain what happened,'' so the patient is able to get the information but the doctor doesn''t feel increased liability."

But physicians participating in other focus groups avoided stating that anerror had occurred, why it occurred or how recurrences would be prevented, according to a recent article in the Journal of the American Medical Assn. Participating in the focus groups were 52 patients and 46 physicians.

The article concluded that patients were getting neither the information nor the emotional support they needed.

"Patients unanimously wanted information regarding an error''s cause, consequences and future prevention," the article said. "Yet many physicians, while striving to be truthful, were reluctant to provide patients with this basic information. For some physicians, error disclosure involved being a ''spin doctor,'' describing the event in the most positive yet factually accurate light possible. As early as the 1930s, physicians were advised to ''keep a cautious tongue'' regarding medical errors."

Moreover, doctors felt that errors that cause harm should be disclosed "except when the harm is trivial, the patient cannot understand the error, or the patient does not want to know about the error," the article said.

At Barnes-Jewish Hospital and Washington University Medical Center in St. Louis, there is a policy of providing timely information to patients as soon as possible after an error occurs. "Usually, there is a fair amount of investigation to understand all the breakdowns that led to an error," said Victoria Frazier, one of the authors of the JAMA article and a professor of medicine at Washington University.

At Barnes-Jewish Hospital, a team of nurses, doctors and representatives of the hospital''s patient-safety program meets with the family and the victim, if he or she is still alive, to "help take care of the family and explain what happened and what they''re going to do about it."

When an error happens, Frazier said, "I can only tell you that the physician and nurses are devastated -- no one is trying to harm the patient."

UCLA Healthcare system has a similar policy. Diana Hedges, director of risk management, said that a full assessment takes time. "We don''t necessarily know instantly what has happened. Most often, we''re not given the opportunity to conduct the dialogue with the family. The first thing they do is run to an attorney, and then we have no opportunity to deal with the family. People get attorneys pretty darn quick, and often people assume that a terrible mistake has been made and we''re not going to tell the truth, when we were going to sit down with them and tell the truth."

Former space shuttle astronaut James Bagian, who leads the Veterans Affairs National Center for Patient Safety, has established committees to look not only at patient errors but also at "near-misses" to try to correct procedures throughout the 170-hospital system. In cases of medication errors, for example, he says the typical response would be simply to tell the nurse or pharmacy to be more careful. "That''s like saying don''t make a typo," Bagian said.

Instead, the VA has instituted a more systematic approach to errors, similar to efforts by the airline industry. Instead of ascribing blame, the first questions asked are what happened, why it happened and what can be done to prevent it from ever happening again.

Bar codes for safety

The VA has pioneered a system in which each patient, medication and dosage level is assigned a bar code. Each time a patient is given medication, it is matched with the bar-coded entry the physician made on the electronic patient chart. When the medication is given, the nurse waves the scanning wand over the patient''s arm band and then the medication to make sure they match and that the patient is being given the correct dosage at the correct time.

"I can''t tell you how many times the nurses said they would have pulled out the wrong medication," Bagian said.

The Food and Drug Administration this month said it would require that similar systems be implemented nationwide.