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Disclosure and Apology - From Dread to Disclosure

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Ann Marie Swindler

on 7 August 2013

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Transcript of Disclosure and Apology - From Dread to Disclosure

Adverse Patient Event
Patients desire, and now expect, to be informed of adverse events that effect them.
Studies have indicated that, not only does the notification
itself impact a patient's reaction to an adverse event, but the nature and quality of the communication surrounding
the event can have significant influence.
Barriers to
Fear of litigation
Requirements of malpractice insurers...
It's a difficult conversation to have....
Lack of education and/or tools....
It's the right thing to do...
It promotes patient autonomy.
It allows for involvement of patients and family in the resolution and follow-up care
It may mitigate further action on the part of the patient or family.
Their belief that their physician has not been honest with them about a bad outcome.
The perception that "no one would
tell [them] what was going on."
They were advised to sue by
someone. (often another health-
care provider)
How Disclosure Helps
Disclosure as a process begins with
informed consent and, as such, helps to
manage expectations.
Transparency aids in the cultivation of a patient
and family-centered care model. When the patient
and family are involved in care, they are less likely to be litigious.
A patient or family member who feels as if he
is being kept "in the loop" does not need to sue
to determine "the truth."
Disclosure as
a Process
Begins with informed consent
Can change as information is gathered
Fosters open lines of communication
The disclosure process is sensitive to
how those involved are affected on both
sides of the disclosure:
Intervention, when necessary
North Carolina General Statute 413
Statements by a healthcare provider
apologizing for an adverse outcome in
medical treatment, offers to undertake
corrective or remedial treatment or
actions, and gratuitious acts to assist affected
persons shall not be admissible to prove
negligence or culpable conduct by the health
care provider in an action brought under
Article 1B of Chapter 90 of the General Statutes.
(2004-149, s.3.1)
Protection for Disclosure...
Anatomy of a Disclosure
Informed Consent
An opportunity to manage expectations - USE IT TO YOUR ADVANTAGE
An adverse event occurs. It may be an event that harms a patient,
or one that merely ALMOST harms a patient. Most patients state that
they want to know about a "near miss" even if it did not affect them.
Pre-Analysis Disclosure
This dislcosure is often made when little real information is available.
It is important at this stage not to speculate, and it is completely acceptable to admit that we simply do not have all of the facts.
Answer all of the patient's questions as honestly as possible during this time, and assure the patient and family that we are investigating the matter and will be keeping them informed of what we find.
This is a good point at which to involve a Patient Representative, who may serve as a central point of contact for the patient and family from here forward.
What should be disclosed?
Benevolent deception versus ruthless revelation
The "don't ask, don't tell" mind trick
What if it isn't certain that an error was made?
What if it wouldn't have made a difference anyway?
On treatment decisions
On non-clinical decisions
Help...you are not alone.
One standard you may choose to follow is that information should be disclosed if that information is essential for a patient or family to be "free of fundamental misconceptions about what transpired."
The Business Integrity Division is always available to offer support.
The Ethics Committee is available for consultation.
Post-Analysis Disclosure and Apology: "The Five A's..."
All the Facts
Appropriate Compensation
Demeanor is SO important...........
"Sometimes it's not what you say that's important; it's what you don't"
Only 7% of language is verbal, so you are communicating even when you don't realize it...
Sometimes that communication is, "I know something I'm not telling you...
Respect for the feelings of patients and families may reduce their feelings of abandonment
Patients are more likely to forgive the errors or ommisions of a compassionate clinician
All apologies are not created equal.
Apologies without remorse, or empty apologies, can actually do more harm than good
Consider the following seven apologies:
"I'm sorry for having stepped on your toe."
"I know I have hurt you; believe me that I didn't intend to."
"I wish I hadn't done it, or that I could undo it..."
"Given another chance I would be more careful."
"I regret having done it."
"Sorry for interrupting."
"I know that you consider what I have
done is wrong or impolite."
"I wish I didn't have to do it."
"Given the same circumstances, I'd do it again."
"I'm sorry you're sick."
I've got nothing to do with this but if I could I'd change it."
"I say this just to make you feel better; to show that I commiserate."
"Excuse me?"
"I didn't hear or understand you."
"Could you please repeat what you said?"
"I know this caused inconvenience and I wish I didn't have to do this - but I have no choice." (implies neither regret nor intention of future avoidance...)
"Sorry if I've hurt you..."
"I don't think I've done anything wrong, but if you feel that
I have I'll give you the benefit of doubt and apologize."
No regret here - actually blames the other person for his/her oversensitivity....
"Excuuuuuse Meeee!"
"I know you'd prefer that I don't exist, but I won't give you that pleasure."
"I have no intention of apologizing."
"Excuse Me??"
I can't believe what I've just heard, so I'll pretend I've misheard you."
Ambiguous - Leaves the listener at a disadvantage.
A great apology contains:
An ackowledgement that something unfortunate, unexpected,
or generally "bad" has occurred.
An expression of remorse and/or empathy.
A desire or intention to ensure that the adverse event not occur again
All the facts.........
There should be an EXPLICIT statement that an adverse event has occurred.
Convey the facts as they become known
Do not speculate; you don't have to have all the answers right away.
Do not blame, minimize, or falsely reassure.
Establish working lines of communication for continued interactions.
Get patient representatives involved
This step has everything to do with restoration of trust, and is what makes healthcare different from other industries.
Patients want to know that steps are being taken so that the adverse event does not happen again.
Often, it is at this point in the process that a valuable opportunity to involve the patient of family may present itself.
Appropriate compensation...
Risk Management and Legal Services may be able to assist patients or families who have been legitimately harmed by adverse outcomes.
Sometimes just avoiding the out-of pocket expenses associated with an adverse outcome can be enough to make a patient decide against litigation.
As we advance in our committment to both patient and family centered care and a just culture environment, appropriate and timely disclosure becomes more and more important.
Disclosure of an adverse event is difficult, but there is support and assistance available.
Managing Adverse Events and
Unplanned Patient Outcomes

Ann Marie Swindler, RN, JD, CPHRM
Associate General Counsel Risk & Litigation
Reasons to disclose....
It's the right thing to do.
It promotes patient autonomy.
It allows for involvement of patient and family in the resolution and follow-up care.
Why people sue....
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