ethics news & views

Should doctors reveal one another's errors to patients?

A physician told me about a case in which a surgeon left a piece of gauze in his patient's abdomen after a surgery. The gauze was discovered in a subsequent surgery, and the error was noted in the patient's records. The patient, however, was never told about it. Unfortunately, the patient's condition worsened over the next two years, owing to complications that were almost certainly related to the surgical error. During those two years, the patient saw five other physicians, each of whom read his medical records and knew about the error. Yet, those doctors never told the patient. Should they have?

The phenomenon of physicians' concealing one another's errors is not uncommon. Although I've not seen any carefully conducted research on it, there is a huge anecdotal literature attesting to the reluctance of physicians to publicly criticize one another. Over the years, more than a few physicians who work at tertiary care hospitals have told me they are sometimes referred patients who suffered considerable adversity at another hospital, most probably from error. Rarely, though, are these patients alerted to the likelihood of error for two reasons:

• A physician's alerting a patient to a probable error committed by another doctor counts as a serious breach of physician etiquette. Physicians generally feel an obligation to protect one another, especially as they are all vulnerable to committing errors and are anxious—if not downright terrified—of being sued for malpractice.
• The physician at Ajax Hospital who tells a patient that she has been harmed by a physician's error at Hercules Hospital risks losing future referrals from Hercules (as well as from other hospitals once word get out about the disclosure). While hardly a good ethical reason for a doctor's concealing another doctor's error from a harmed patient, the loss of revenue from the loss of referrals probably counts as a serious disincentive among doctors to alerting patients to the probability that they have suffered harm from error.

Neither of the above, however, are good ethical reasons for concealing error from patients. The AMA's Current Opinions on the Code of Medical Ethics states that:

"It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients. Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions. Situations occasionally occur in which a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment. In those situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred … Concern regarding legal liability which might result following truthful disclosure should not affect the physician's honesty with a patient." (Section 8.12)

But how does this affect Dr. Robinson, who believes her patient was harmed by an error of Dr. Crusoe's?

When another doctor makes the mistake
One thing Dr. Robinson had better keep in mind when she treats the patient who was harmed by Dr. Crusoe's error is this: If Dr. Robinson proceeds to secure informed consent from the patient for treatment, Dr. Robinson may be legally liable for failing to disclose Dr. Crusoe's error. A malpractice lawyer, for example, would pounce on the error I described in the opening paragraph as requiring disclosure by the treating physicians. The plaintiff's bar would argue that this patient is not giving adequately informed consent if he doesn't know what caused his ills. The patient has a right to know that his gastrointestinal problems are not the result of his diet, his lifestyle, or his genetic inheritance. And to the extent that five physicians treated that patient but never told him of the error that precipitated his need for their treatments, a plaintiff lawyer could argue that all five were guilty of failing to secure adequately informed consent.

In a morally ideal world, of course, Dr. Crusoe would have told the patient about the error he committed and apologized. Dr. Crusoe's failure to do so puts Dr. Robinson in a difficult position. If the error is utterly unambiguous and documented, such as the gauze example, Dr. Robinson should tell the patient and state the facts objectively: "Mr. Smith, when you had your first surgery two years ago, your records show that a piece of gauze was left inside your belly. The gauze was discovered in the second surgery you had. In all probability, the gastrointestinal problems you've been having for the last two years stem from that mistake."

Many errors, however, will not be so transparent or obvious. Here's where Dr. Robinson will find herself in a sticky wicket because before she discusses another physician's error with her patient, she needs to have very sound evidence that such error did indeed occur. (The wicket will be even stickier if Dr. Robinson is treating the patient for something unrelated to Dr. Crusoe's error since then, the error won't be involved in Dr. Robinson's securing informed consent.)

In a morally ideal world—where moral courage would be taken for granted, incidentally—if Dr. Robinson only suspected a harm-causing error on Dr. Crusoe's part, she would get in touch with him and discuss the matter. Sometimes what seems to be an error turns out to have been a problematic but nevertheless justifiable or excusable judgment call. The point here is for Dr. Robinson not to jump to conclusions about Dr. Crusoe's competence or lack of it.

If Dr. Crusoe admits that a harm causing error did indeed occur and that he didn't disclose it to Mr. Smith, the morally ideal action by Dr. Robinson would be to tell Dr. Crusoe that she will inform Mr. Smith of the error as part of her informed consent responsibilities and her fiduciary duty to Mr. Smith.

One can only imagine Dr. Crusoe's distress at hearing this (and Dr. Robinson's in telling him). In disclosing Dr. Crusoe's error to Mr. Smith, she does what is right by the patient (and thus acts ethically), but will likely incur Dr. Crusoe's wrath. She risks professional harm to herself if Dr. Crusoe decides he will try to blackball her for her disclosing his error. She risks harm to her professional reputation if word gets out among her fellow physicians that she was instrumental in one of her patients suing another physician. And she risks causing professional and possibly economic pain to Dr. Crusoe from an expensive lawsuit.

Space doesn't allow a discussion of how these scenarios, in turn, might play out. Suffice it to say, however, that one ought not be penalized for doing what is morally right. What needs to occur in health care and in tort reform efforts is eradicating the disincentives that prevented Dr. Crusoe's disclosing the error in the first place. Very likely, those disincentives included a narcissistically-based inability to admit he had erred; an inability to recognize and appreciate the patent's moral right to know about the error; and Dr. Crusoe's understandable fear of a lawsuit. Initiating morally focused education in medical curricula might help doctors acknowledge their occasional errors and the patient's categorical right not to be harmed by them. Tort reform by way of developing an enterprise liability or a no-fault system would greatly address the physician's fear of suit.

I have enormous sympathy for Dr. Robinson, who is caught in the midst of her loyalty to her patient, her loyalty to her colleagues, and her natural instinct to preserve the good will of her fellow physicians. She shouldn't be put in such a dreadful position, but it is probably the case that it happens more often than it should.

Research for this article was supported by the Agency For Healthcare Research and Quality grant 1U18HS11918-01 awarded to the Georgia Hospital Association.

[ Posted by John Banja at May 1, 2002 10:10 AM | More HCECG articles ]

© 2000-2002 by the Center for Ethics, Emory University. Some rights reserved.