Adverse Events: Communication Is Key To Lowering Claims


“Studies show that the most important factor in people’s decisions to file lawsuits is not negligence, but ineffective communication between patients and providers.”

- New England Journal of Medicine, 2006.

More than 20 years ago, the Institute of Medicine released the blockbuster report To Err is Human, shining a spotlight on medical errors and how they are caused. While much improvement has been made, more work remains to be done.


Disclosure

A major issue that branched off from the study deals with the question of a healthcare provider’s appropriate response when an “adverse event” occurs. Any policy developed in the interest of “disclosure” and “transparency” must recognize the crucial distinction between “medical errors” and “adverse events”. An unfortunate outcome is not necessarily synonymous with negligence. However, the patient and/or their family will want answers when an adverse event occurs, so the communication process between provider and patient/family cannot be delayed. How definitive that initial communication will be depends upon how much the physician or hospital knows about the cause of the adverse event.

When the healthcare provider knows immediately or at least within a few hours of the event that a medical error has occurred, three things should happen simultaneously:

  1. The hospital or clinic should have a meeting of a pre-ordained group (including, but not necessarily exclusive to, involved provider(s), risk management, quality) to confirm the error and arrange to disclose the error to the patient/family.
  2. The hospital or clinic’s professional liability carrier should be put on notice of the error and the plan to disclose the error to the patient/family.
  3. The hospital or clinic should begin the “root cause analysis” process per the entity’s policy.

In that initial meeting with the patient/family, there may be many questions. Provide the answers that you know. When you do not know, assure them you will attempt to find an answer as quickly as possible and get back to them in a timely fashion.

The task is more difficult when an adverse event occurs and the healthcare provider(s) are not sure what happened. All you can do is be honest about what you know so far and what your plans are to further investigate the circumstances. Provide the contact information for a person who will be accessible and keep them abreast of the investigation.

We do not recommend that a representative of the professional liability carrier participate in the initial meeting with the patient/family. However, questions may arise as to financial responsibility for prolonged hospitalization, lost wages, and future medical expenses during the meeting. At that point, you can bring the professional liability carrier into the process. Tell the patient/family that you will have the PL carrier contact them. Give them the PL contact info so that they can call if they are not contacted in what they believe is a reasonable time frame.

If a clear medical error results in emergency room treatment, it is okay for the hospital to take responsibility for those ER charges; either a full write-off or a write-off of the portion of the bill that would be the patient’s responsibility. A hospital should not accept responsibility for medical expenses in cases of questionable liability or, even if an error is acknowledged, for unknown future medical expenses that may not be the result of the error. Always consult with your PL carrier on questions of related medical expenses.


Creating a Non-Punitive Culture To Ensure Transparency

Human beings make mistakes - even smart, responsible, caring doctors and nurses. Still, it is never easy to admit mistakes, especially when a mistake can cause serious injury or even death. The fear of reprisals, lawsuits, or repercussions as to future employment are all reasons why providers may not want to disclose or admit errors. In addition, medical malpractice payments made on behalf of individual providers must be reported to the National Practitioner Data Bank. That information will be available to other healthcare facilities that may consider the offender for future employment.

Regardless, the American Medical Association code of ethics requires providers to inform patients of errors and to ensure they understand what occurred. That is why it is imperative for administrators, medical executive committees, and credentialing committees, while performing their due diligence of peer review, to create a culture that encourages the admission of errors and takes reasonable, non-punitive corrective action to learn what happened and intending to prevent the same error from occurring again.


Near Misses

What about situations where an error occurs - for example, the administration of a wrong dose of medication - but results in no adverse outcome? We do not believe that a provider should be prohibited from disclosing the error if they have a personal ethical or moral obligation to do so. However, we do not believe a disclosure policy must require an admission of an error that caused no harm.

Furthermore, we believe strongly that hospitals should treat “near misses” just as seriously as adverse events when it comes to analyzing factual circumstances to enhance patient safety and prevent future errors.


Communicating Final Determination

Once the provider or facility has completed its investigation of an adverse event, words must be chosen carefully when communicating with the patient/family. An apology should be included when it is clear an avoidable error occurred. Describe the steps that will be taken to prevent the recurrence of similar errors.

In circumstances where the adverse event was found to be a known risk of the treatment or an error could not be definitively proven, an admission of regret and empathy should be distinct from an admission of liability. There should be no ambiguity in the communication and no speculation as to what happened or what might be to blame.


Mike Walsh thumbnail square
Mike Walsh, Liability Claims Manager

About The Author

Mike Walsh is an AIC and CPCU-credentialed professional with more than three decades of experience in insurance claims, primarily in medical malpractice. As Liability Claims Manager for LHA Trust Funds, Mr. Walsh heads a team of senior claims consultants who investigate and assist in the resolution of claims. Mr. Walsh also works closely with hospital administrators, risk managers, safety officers, and clinical staff to help them identify and address potential liability issues.

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