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Three keys to optimal results: Disclose, disclose, disclose
Establish disclosure policies and procedures
Traditionally, medical error disclosures have not occurred due to fears of liability, as well as credentialing, sanctioning, and licensing concerns. However, new research suggests that not disclosing a medical error actually can leave a health care provider in a worse position than if the provider had disclosed the medical error, says James W. Saxton, JD, chairman of the health care litigation group for Stevens & Lee, PC in Lancaster, PA.
"For example, failure to disclose leads patients and their families to believe that a cover-up has occurred; and in order to learn what actually happened, they find that only by filing a lawsuit can they discover what occurred," he explains.
"Disclosing medical errors in the right way, by the right people, and at the right time is the better approach for all involved," Saxton continues. "The right way means that we empathize with the patients and their families and apologize for the circumstances without admitting liability." This is not the time to place blame or fault, either, he emphasizes.
"Determining who should be the person or people to speak with the family is very important," Saxton notes. "The primary responsibility lies with the physician, but quality and risk managers should always be involved. Their involvement could include the actual discussion with the patient and family but should also include the investigation of what occurred. By investigating what has occurred, we can move toward continuous quality improvement as we learn from the errors. Measures can then be taken to prevent such errors in the future."
For this reason, Saxton says, it would be beneficial if any policy and/or procedure established also would require that physicians report near misses to their quality managers. "Near misses are a tremendous resource from which we can learn and then prevent medical errors from occurring in the first place," he explains.
"Also, quality and risk managers should be involved in follow-up with the patient and/or the family. A contact person should be established to whom family can direct questions or concerns as they come up as well. Managers should also be instrumental in coordinating meetings with family, especially when more than one health care provider may be involved," he notes.
Saxton lists the following basic legal strategies of which quality managers should be aware:
When creating and implementing policies and procedures, Saxton recommends these do’s and don’ts: