Open Disclosure
Sep
23
Written by:
Ruth Townsend
Thursday, September 23, 2010 12:47 PM
In a study published in the Medical Journal of Australia this week (MJA 2010; 193 (6): 351-355) researchers at the Melbourne School of Population Health and Melbourne Law School found that many doctors and nurses were not openly disclosing errors made by them to their patients for fear of litigation.
Open disclosure is an acknowledgement made by a healthcare professional or healthcare organisation that a medical error has been made. It requires that the effects of the error on the patient’s ongoing health status be explained and that information about what is going to be done about it be relayed to the patient. Open disclosure falls within the legal duty of care of healthcare staff to relay this information, particularly in cases where the preventable injury will be made worse by a failure to inform the patient of the mistake.
This was the case in Wighton v Arnott [2005] NSWSC 637, where a patient had an accessory nerve in her shoulder severed by her surgeon but went for several months without appropriate treatment because the doctor did not disclose the error to the patient. The trial Judge said that the doctor’s duty of care included alerting the patient as to what had occurred. His failure to do so amounted to a breach of his duty. So in this case it wasn’t disclosing that got this doctor into trouble but rather the opposite.
Each state and territory has provisions for apology written into their respective civil liability laws. This legislation allows for apologies and expressions of regret to be made and not amount to an admission of liability. The definition of apology in NSW, for example, means “an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.” The effect of apology on liability is that it does not constitute an express or implied admission of fault or liability and that any such apology is not relevant to a determination of such in court. Further, the section says that the admission or apology is not admissible as evidence of the fault or liability. What this essentially means is that fault or liability would still have to be proven just as it always has been — on all the other evidence.
There is some ambiguity around the law in some states. In Western Australia for example, the legislation says that an apology means an “expression of sorrow, regret or sympathy by a person that does not contain an acknowledgment of fault by that person.” It is hard to imagine how this distinction would work in practice because in real terms it would mean that the doctor in Wighton, for example, would have been required to say the following, (spoken) “I am sorry that your shoulder is not better,” (not spoken) “but it is not my fault necessarily”. Some have called this a “half-apology”. This would arguably undermine the purpose of the legislation, which is to encourage practitioners to disclose adverse events so that they can be remedied sooner with less cost to the patient (physically and emotionally) and less cost to the healthcare system as a whole.
If fault were to be admitted any case tried in negligence in court would still require the plaintiff to prove on the balance of probabilities that ‘but for’ the action or inaction of the doctor the patient would not have suffered the damage that they did. It is easy to see that damage done to the patient could also potentially include psychological damage suffered as a result of delay in remedying an error for the sake of a lack of an admission of a mistake. Perhaps more significantly however, we all feel that apologising when you know you have done something wrong is the right thing to do — most practitioners want to say sorry and act to try and rectify the problem; and patient’s are less likely to suffer if they are apologised to. The making of an apology and admission of a mistake allows the practitioner to meet their legal, ethical and human rights obligations to their patients and allows patients a better chance at a better outcome.
Tags: