Organisation
Guideline
American Medical Association
When “a patient suffers significant medical complications that may have resulted from the doctor’s mistake . . . the doctor is ethically required to inform the patient of the facts necessary to ensure understanding of what has occurred” [2]
General Medical Council
“Patients who complain about the care or treatment they have received have a right to expect a prompt, open, constructive and honest response including an explanation and, if appropriate, an apolog” [1]
Australian Medical Council
When adverse events occur, you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately [13]
Mounting evidence demonstrates that patients want to have an explanation for adverse events and there is also increasing evidence that physicians want to give an explanation of adverse events [3]: this is consistent with the ethical argument that being open with patients about adverse events is both ethically sound as an action in its own right (deontological), and when considering the possible consequences of that action (consequential). Therefore the current state of affairs is a situation where both patient and physician have the same goal, there is an ethical imperative to support that goal, and this is reflected in recommendations by regulatory bodies. Why then, do we need a chapter on the disclosure of complications?
The reason is twofold: firstly medical errors are common, and they represent an inevitable part of a healthcare service that is delivered by humans. The Institute of Medicine’s report To Err Is Human: Building a Safer health System [4] in 2000 estimated the number of medical errors that occur in the Health Service in the USA at over one million per annum; 10 % of these (100,000) were considered to cause patients serious harm. The number of deaths attributed to preventable adverse events was estimated at between 44,000 and 98,000. Breast cancer accounted for 42,297 deaths is the same period. Secondly, it has been estimated that in the USA doctors disclose less than half of all serious errors [5]. Given the number of adverse events, and the proportion of those that are estimated to go undisclosed, we can see that not only is this issue prevalent within the profession, addressing it adequately (with resultant changes to practice and safeguards), could significantly improve health care.
This chapter plans to focus on the balance of factors that feed into a physician’s decision to disclose or not disclose complications. We will examine the fundamental issue, which is that physicians have a conflict of interest in disclosing complications.
Limitations of the Current Practice
A complex myriad of factors influence the decision to disclose adverse events. Efforts to provide taxonomy for these factors have been performed: Figs. 23.1 and 23.2 provide taxonomy generated through a literature review of 316 studies, combined with a qualitative methodology [6]. This divided barriers and motivators to disclosure into categories, and is a helpful summary of the complex interplay between different factors. This is by no means the only system for considering these factors, but it provides a useful foundation upon which to build the discussion. The purpose of including it here is to provide a point of reference for the reader. We will now discuss some of these factors in more detail.
Fig. 23.1
Barriers to the disclosure of complications (From Kaldjian et al. [6]; used with permission)
Fig. 23.2
Motivators to the disclosure of complications (From Kaldjian et al. [6]; used with permission)
Is There a Professional Consensus?
In the introduction, we reviewed the ethical, moral, and professional reasons for full disclosure. The guidance from multiple regulatory bodies encourages full and open disclosure; however, there are two common arguments against such full and open disclosure.
Firstly, protecting the doctor-patient relationship has been cited as a reason against disclosure of complications [7]. This is based on the notion (perceived or real) that the doctor should be seen as being infallible, to engender trust in the doctor and the medical profession as a whole. A mistake can undermine this trust. This argument therefore assumes that a mistake on the part of the medical team may harm the relationship—this may not necessarily be true. This argument also assumes (or, perhaps a better word is hopes) that the mistake will not be discovered by the patient: non-discovery by the patient, their family, colleagues, the institution, governing bodies etc is a key part in any decision to not disclose a complication, and forms an inherent part in all decisions regarding disclosure—this idea is an important theme, and one which we will refer back to.
Secondly, the moral principle of non-malfeasance has been used to contest full disclosure in certain circumstances: “therapeutic privilege” describes the act of not disclosing something to a patient that may cause the patient harm. This argument therefore requires an assessment that the harm caused to the patient will be sufficient to outweigh the professional and ethical responsibilities on the physician.
Both arguments above are in direct conflict with one of the guiding principles in modern day health care, namely patient autonomy. This principle dictates that a patient has the right to make their own choices—not giving patients the relevant information undermines their ability to decide for themselves. Undermining a patient’s autonomy to protect the doctor-patient relationship, may be a difficult position to defend. Undermining a patient’s autonomy to protect the patient is consistent with current ethical and professional practices, but requires an assessment of the harm that would be caused by disclosure—who, then, conducts that assessment? There is an inherent conflict of interest in the medical team responsible for the error conducting the assessment, and this theme of conflict of interest is at the very heart of the decision making process.
What Is a Complication?
In order to discuss this aspect of the disclosure process, we will assume that a simplified situation is in place: namely that both patient and physician want complications disclosed.
The definition and classification of a complication was dealt with in a previous chapter in this textbook. However, we need to discuss a specific problem that relates to the disclosure of complications. The fundamental issue is that the physician has to decide what the patient would view as a complication—the “definition” of a complication is subjective. Where one person decides based on what they think another person’s subjective assessment is, there is an inevitable disparity, such that some complications will be disclosed that the patient did not feel they needed to know, and others will not be disclosed that the patient would have wanted to know.
For example, if an instrument is dropped during a surgical case, this is unlikely to be called a surgical complication, and the patient is unlikely to come to harm from it. It would be reasonable to assume that the patient does not need to know about this. Indeed, it would present a huge burden on the surgical team if every small mistake had to be disclosed, especially if there was no harm. However, if it was a replacement joint prosthesis that was dropped and sourcing the new, appropriate joint took 10 min, should the patient be told now? Perhaps it took 20 min, 30 min or even an hour.
The patients in this rather contrived example have been exposed to a longer anaesthetic time, with the subsequent increased risks. Therefore the surgical team has to make a judgement as to:
1.
The increase in risk that the patient has suffered
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