Responding to Medical Errors—Implementing the Modern Ethical Paradigm

T. H. Gallagher &  A. Kachalia

The New England Journal of Medicine

January 13, 2024

DOI: 10.1056/NEJMp2309554

Here are some excerpts:

Traditionally, recommendations regarding responding to medical errors focused mostly on whether to disclose mistakes to patients. Over time, empirical research, ethical analyses, and stakeholder engagement began to inform expectations - which are now embodied in communication and resolution programs (CRPS) — for how health care professionals and organizations should respond not just to errors but any time patients have been harmed by medical care (adverse events). CRPs require several steps: quickly detecting adverse events, communicating openly and empathetically with patients and families about the event, apologizing and taking responsibility for errors, analyzing events and redesigning processes to prevent recurrences, supporting patients and clinicians, and proactively working with patients toward reconciliation. In this modern ethical paradigm, any time harm occurs, clinicians and health care organizations are accountable for minimizing suffering and promoting learning. However, implementing this ethical paradigm is challenging, especially when the harm was due to an error.

Historically, the individual physician was deemed the "captain of the ship," solely accountable for patient outcomes. Bioethical analyses emphasized the fiduciary nature of the doctor-patient relationship (i.e., doctors are in a position of greater knowledge and power) and noted that telling patients...about harmful errors supported patient autonomy and facilitated informed consent for future decisions. However, under U.S. tort law, physicians and organizations can be held accountable and financially liable for damages when they make negligent errors. As a result, ethical recommendations for openness were drowned out by fears of lawsuits and payouts, leading to a "deny and defend" response. Several factors initiated a paradigm shift. In the early 2000s, reports from the Institute of Medicine transformed the way the health care profession conceptualized patient safety.1 The imperative became creating cultures of safety that encouraged everyone to report errors to enable learning and foster more reliable systems. Transparency assumed greater importance, since you cannot fix problems you don't know about. The ethical imperative for openness was further supported when rising consumerism made it clear that patients expected responses to harm to include disclosure of what happened, an apology, reconciliation, and organizational learning.

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CRP Model for Responding to Harmful Medical Errors

Research has been critical to CRP expansion. Several studies have demonstrated that CRPs can enjoy physician support and operate without increasing liability risk. Nonetheless, research also shows that physicians remain concerned about their ability to communicate with patients and families after a harmful error and worry about liability risks including being sued, having their malpractice premiums raised, and having the event reported to the National Practitioner Data Bank (NPDB).5 Successful CRPS typically deploy a formal team, prioritize clinician and leadership buy-in, and engage liability insurers in their efforts. The table details the steps associated with the CRP model, the ethical rationale for each step, barriers to implementation, and strategies for overcoming them.

The growth of CRPs also reflects collaboration among diverse stakeholder groups, including patient advocates, health care organizations, plaintiff and defense attorneys, liability insurers, state medical associations, and legislators. Sustained stakeholder engagement that respects the diverse perspectives of each group has been vital, given the often opposing views these groups have espoused.

As CRPS proliferate, it will be important to address a few key challenges and open questions in implementing this ethical paradigm.

The article is paywalled here.

The article provides a number of recommendations for how healthcare providers can implement these principles. These include:

• Developing open and honest communication with patients.
• Providing timely and accurate information about the error.
• Offering apologies and expressing empathy for the harm that has been caused.
• Working with patients to develop a plan to address the consequences of the error.
• Conducting a thorough investigation of the error to identify the root causes and prevent future errors.
• Sharing the results of the investigation with patients and the public.

The Psychology of Offering an Apology: Understanding the Barriers to Apologizing and How to Overcome Them

Karina Schumann
Current Directions in Psychological Science 
Vol 27, Issue 2, pp. 74 - 78
First Published March 8, 2018

Abstract

After committing an offense, a transgressor faces an important decision regarding whether and how to apologize to the person who was harmed. The actions he or she chooses to take after committing an offense can have dramatic implications for the victim, the transgressor, and their relationship. Although high-quality apologies are extremely effective at promoting reconciliation, transgressors often choose to offer a perfunctory apology, withhold an apology, or respond defensively to the victim. Why might this be? In this article, I propose three major barriers to offering high-quality apologies: (a) low concern for the victim or relationship, (b) perceived threat to the transgressor’s self-image, and (c) perceived apology ineffectiveness. I review recent research examining how these barriers affect transgressors’ apology behavior and describe insights this emerging work provides for developing methods to move transgressors toward more reparative behavior. Finally, I discuss important directions for future research.

The article is here.

After medical error, apology goes a long way

Science Daily
Originally posted October 2, 2017

Summary: Discussing hospital errors with patients leads to better patient safety without spurring a barrage of malpractice claims, new research shows.

In patient injury cases, revealing facts, offering apology does not lead to increase in lawsuits, study finds

Sometimes a straightforward explanation and an apology for what went wrong in the hospital goes a long way toward preventing medical malpractice litigation and improving patient safety.

That's what Michelle Mello, JD, PhD, and her colleagues found in a study to be published Oct. 2 in Health Affairs.

Mello, a professor of health research and policy and of law at Stanford University, is the lead author of the study. The senior author is Kenneth Sands, former senior vice president at Beth Israel Deaconess Medical Center.

Medical injuries are a leading cause of death in the United States. The lawsuits they spawn are also a major concern for physicians and health care facilities. So, hospital risk managers and liability insurers are experimenting with new approaches to resolving these disputes that channel them away from litigation.

The focus is on meeting patients' needs without requiring them to sue. Hospitals disclose accidents to patients, investigate and explain why they occurred, apologize and, in cases in which the harm was due to a medical error, offer compensation and reassurance that steps will be taken to keep it from happening again.

The article is here.

The target article is here.

Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk

Benjamin J. McMichaela, R. Lawrence Van Hornb, & W. Kip Viscusic

Abstract:
 
State apology laws offer a separate avenue from traditional damages-centric tort reforms to promote communication between physicians and patients and to address potential medical malpractice liability. These laws facilitate apologies from physicians by excluding statements of apology from malpractice trials. Using a unique dataset that includes all malpractice claims for 90% of physicians practicing in a single specialty across the country, this study examines whether apology laws limit malpractice risk. For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.

The article is here.

Why Is It So Hard for Us to Admit Our Mistakes?

Karen Firestone
Harvard Business Review
Originally posted March 28, 2016

Advice for how to gracefully handle mistakes often emphasizes 1) taking responsibility for the error, 2) presenting a plan for the remedy, and then 3) fixing what was wrong. Although these directions sound simple, they can be extremely difficult to execute in real life. No one finds it easy to own up to a mistake — particularly a costly one.

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Many people are afraid of appearing incompetent in front of our colleagues and bosses. But what we sometimes don’t realize is that it is worse to be viewed as a coward incapable of owning up to mistakes or accepting criticism. Rather than saying, “The plate dropped,” it is good practice to say, “I dropped the plate” — especially if that is exactly what happened. The best executives and investors “drop plates” all the time; without doing so, they would lack experience and a healthy understanding of risk.

The article is here.

Who Accepts Responsibility for Their Transgressions?

By Karina Schumann and Carol S. Dweck
Pers Soc Psychol Bull 0146167214552789,
first published on September 24, 2014
doi: 10.1177/0146167214552789

Abstract

After committing an offense, transgressors can optimize their chances of reconciling with the victim by accepting responsibility. However, transgressors may be motivated to avoid admitting fault because it can feel threatening to accept blame for harmful behavior. Who, then, is likely to accept responsibility for a transgression? We examined how implicit theories of personality-whether people see personality as malleable (incremental theory) or fixed (entity theory)-influence transgressors' likelihood of accepting responsibility. We argue that incremental theorists may feel less threatened by accepting responsibility because they are more likely to view the situation as an opportunity for them to grow as a person and develop their relationship with the victim. We found support for our predictions across four studies using a combination of real-world and hypothetical offenses, and correlational and experimental methods. These studies therefore identify an important individual difference factor that can lead to more effective responses from transgressors.



The entire article is here, behind a paywall.

Tipping the scales: Conciliatory behavior and the morality of self-forgiveness

By Thomas Carpenter, Robert Carlisle, and Jo-Ann Tsang
The Journal of Positive Psychology
Volume 9, Issue 5, 2014

Abstract

Two studies examined whether conciliatory behavior aids self-forgiveness and whether it does so in part by making it seem more morally appropriate. Participants in Study 1 (n = 269) completed an offense-recall procedure; participants in Study 2 (n = 208) imagined a social transgression under conciliatory behavior (yes, no) and receipt of forgiveness (no, ambiguous, yes) conditions. Conciliatory behavior predicted (Study 1) and caused (Study 2) elevated self-forgiveness and increased perceptions of the moral appropriateness of self-forgiveness. Perceived morality consistently mediated the effect of conciliatory behavior on self-forgiveness. Received forgiveness and guilt were considered as additional mechanisms, but received mixed support. Results suggest that conciliatory behavior may influence self-forgiveness in part by satisfying moral prerequisites for self-forgiveness.

The article is here, behind a paywall.

The ethics of admitting you messed up

By Janet D. Stemwedel | October 14, 2013
The Scientific American Blog
@docfreeride

Here is an excerpt:

Ethically speaking, mistakes are a problem because they cause harm, or because they result from a lapse in an obligation we ought to be honoring, or both. Thus, an ethical response to messing up ought to involving addressing that harm and/or getting back on track with the obligation we fell down on. What does this look like?

1. Acknowledge the harm. This needs to be the very first thing you do. To admit you messed up, you have to recognize the mess, with no qualifications. There it is.

2. Acknowledge the experiential report of the people you have harmed. If you’re serious about sharing a world (which is what ethics is all about), you need to take seriously what the people with whom your sharing that world tell you about how they feel. They have privileged access to their own lived experiences; you need to rely on their testimony of those lived experiences.

The entire article is here.

Sorry

By William Germano
Lingua Franca - Blog - The Chronicle of Higher Education
Originally posted September 18, 2013

Are academics ever really sorry?

A recent kerfuffle (a good Chronicle of Higher Ed word) at Johns Hopkins involved an interim dean who apologized for asking a research professor to remove a blog post.

When the dean’s apology came forth, my friend Christopher Newfield at the University of California at Santa Barbara tweeted “an explanation would be better than an apology.” I take his point to be that when somebody does what they say they shouldn’t have it’s not the expression of contrition we’re after, it’s the detailed rationale—the sequence of missteps—that led to the action that finally produced the apology.

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So what do we do when caught out? We tend to the deflective (“I’m sorry, but my hands were tied”), the absorptive (“I’m sorry, but I had to do what I thought was right”), or the obstructive (“I’m sorry you feel that way”).

The entire blog post is here.

Exodus International Shuts Down: Apologizes to LGBT Community

By Jade Walker
The Huffington Post
Originally posted June 20, 2013

Exodus International, a large Christian ministry that claimed to offer a "cure" for homosexuality, plans to shut down.

In a press release posted on the ministry's website Wednesday night, the board of directors announced the decision to close after nearly four decades.

“We’re not negating the ways God used Exodus to positively affect thousands of people, but a new generation of Christians is looking for change -- and they want to be heard,” Exodus board member Tony Moore said.

The closure comes less than a day after Exodus released a statement apologizing to the lesbian, gay, bisexual and transgender community for years of undue judgment, by the organization and from the Christian Church as a whole.

“Exodus is an institution in the conservative Christian world, but we’ve ceased to be a living, breathing organism. For quite some time we’ve been imprisoned in a worldview that’s neither honoring toward our fellow human beings, nor biblical," said Alan Chambers, president of Exodus.

The entire story is here.

Conversion therapy advocate issues formal apology, renounces “ex-gay” past

John Paulk says in a statement that he was never "cured" of being gay and apologizes for harming the LGBT community

BY KATIE MCDONOUGH
Salon.com
Originally posted April 25, 2013

Former Exodus International chairman and conversion therapy “success story” John Paulk has written a formal statement of apology for his role in promoting Focus on the Family’s “ex-gay” ministry and for any harm his actions may have done to other gays and lesbians.

In the letter, Paulk admits that “many things” in his life changed during his time at Focus on the Family, though his sexual orientation did not.

The entire letter of apology can be found here.

Here are some excerpts:

"So in 2003, I left the public ministry and gave up my role as a spokesman for the “ex-gay movement.” I began a new journey. In the decade since, my beliefs have changed. Today, I do not consider myself “ex-gay” and I no longer support or promote the movement. Please allow me to be clear: I do not believe that reparative therapy changes sexual orientation; in fact, it does great harm to many people.

I  know that countless people were harmed by things I said and did in the past.

Parents, families, and their loved ones were negatively impacted by the notion of reparative therapy and the message of change. I am truly, truly sorry for the pain I have caused."

The Salon story is here.

Providers to Test Power of Apology in Malpractice Claims

By Robert Lowes

Medscape Medical News

Originally published April 27, 2012

The Massachusetts Medical Society (MMS) wants to prove that clinicians and hospitals can keep medical malpractice out of the courtroom by owning up to their mistakes with apologies — and sometimes cash as well.

The result, says the MMS, will be not only fewer lawsuits but also improved patient safety, less defensive medicine, and lower costs.

Earlier this month, the MMS and 5 other state healthcare organizations announced the start of a pilot program to promote a process called Disclosure, Apology, and Offer, or DA&O. It's a kinder and gentler approach to medical liability reform compared with measures such as caps on noneconomic (pain and suffering) and punitive damages, which are viewed in some quarters as abridging the legal rights of patients.

Like most of organized medicine, MMS supports these traditional liability reforms, but it also sees merit in avoiding the courts.

"The current liability system impedes open communication," says Alan Woodward, MD, a past MMS president and chair of its professional liability committee. "It creates a culture of blame, finger-pointing, and secrecy. We're trying to turn that around into an advocacy system that supports both patients and providers."

The entire article is here.

Thanks to Gary Schoener for this lead.