Is there an ethical obligation to disclose?
The ethical obligation to disclose medical errors is well recognized in most areas of medicine. Concealing a medical error may violate ethical codes. The American College of Emergency Physicians (ACEP), in its clinical and practice management guidelines, has indicated that emergency physicians should provide prompt and accurate information to patients and their representatives about their medical condition and treatment. The American Medical Association’s Code of Ethics states that a physician is ethically obligated to inform the patient of all facts necessary for them to have an understanding of what has occurred when a patient experiences a “significant” medical complication from a mistake. This obligation is critical to preserving the trust inherent in the physician/patient relationship. In addition, the Joint Commission requires healthcare workers to inform patients when they have been harmed by medical care.
The development of ethical standards for disclosure of medical errors in EMS, however, is somewhat behind other areas of medicine.
Underreporting in EMS
A 2002 study published in Prehospital Emergency Care contained a consensus statement that standard operating procedures to prevent and recover from medical errors in the field are “in their infancy.” A 2006 study done at the University of North Carolina at Chapel Hill indicates that EMS providers demonstrate the capacity to identify, report and, to a lesser extent, disclose errors in hypothetical scenarios. However, the study further found that EMS providers may not apply these skills uniformly in their own practices, and that there is a need to enhance error management skills in prehospital clinical practice through focused education and training.
In EMS, as in other healthcare environments, patients may experience adverse events as a result of provider error or other flaws in the prehospital health care system. Patients may be injured, or their healthcare needs may be altered, by these situations.
Why the underreporting? EMS values quality care, and the reputation of an individual EMT or an entire EMS agency may be harmed by disclosure. Lack of training regarding the ethical obligation to disclose errors may further encourage EMS providers to keep silent regarding errors. Fear of litigation and punitive actions by employers, medical directors and licensing agencies top the list when providers are weighing the risks and benefits of disclosure. Moral courage is needed for an EMS provider to admit that an error has occurred. This courage can be enhanced by an agency’s policies and guidelines regarding how to disclose errors, and training on how disclosure of errors should be handled.
Legal & policy outcomes
What are the elements of a good EMS program to enhance reporting and disclosure of medical errors? The system must encourage self-reporting, which necessarily requires no punitive action. Each crewmember should also be encouraged to speak up when something isn’t right, because “ostrich syndrome” is not conducive to transparency and a “best practices” quality assurance program. Deliberate or criminal acts by EMS providers fall into a different category and must be handled in a different manner.
A full investigation of the error and a root cause analysis should follow in order to identify whether the error was human, systemic or the result of equipment failure. Many times, errors are multifactorial, and the entire infrastructure must be examined to determine the root cause. De-identification of errors for statistical analysis may assist an EMS agency in forming quality assurance programs. The error reporting program should also provide emotional support for EMS providers who may experience guilt and shame when they make an error in their sincere efforts to treat patients and save lives.
Documentation of medical errors should follow the service policies. Only the facts should be recorded in the patient care report (PCR), not opinions. Apologies, conclusions and assignments of blame have no place in a PCR. Clearly describe what occurred and what was done to mitigate the error if it was recognized. The service may require an incident report for adverse events that is separate from the patient’s chart. That incident report may be protected by peer review statutes in some states, but may be discoverable in others. The EMS medical director should be promptly involved in any situation where a patient is harmed by error.
EMS providers should not take it upon themselves to report errors directly to a patient without consultation first. Disclosure to a patient that they have been harmed by EMS error is a delicate situation requiring the involvement of the service administration, medical director, risk manager and legal counsel. Telling a patient what happened, why it happened, and what is being done to prevent it from happening again is the heart of full disclosure, and what patients want to hear. Honesty and empathy are also important elements of disclosure. The timing of disclosure may also be important because it may be best to wait until a patient has recovered from a significant adverse event. If the patient is a child, the family must be involved, and emotions may run high. It is important to word a disclosure correctly and not place blame on others.
Patients often desire, and even expect, an apology when things do not go as planned. Disclosure of an error, however, is not the same as an apology. Although “apology immunity” exists in some states, not all states have this protection, and an apology can be used in malpractice litigation if it’s not protected by law (see the February 2011 EMS Insider Legal Consult by Doug Wolfberg).
Apology immunity creates the opportunity for openness and increased patient satisfaction with medical providers. It is important for EMS service policies to reflect state law as to whether this immunity exists before encouraging apologies to patients.
Long-term outcomes of disclosure
The effect of disclosure remains the subject of some dispute. Although the ethical obligation to disclose is clear, the question of whether disclosure suppresses malpractice litigation or leads to more of it is still open to debate. Patients often turn to attorneys–rather than their treating medical providers–to find out what happened to them after they experience an adverse outcome, and attorneys have a financial incentive and powerful legal tools to discover whether an error has been concealed. Juries, who may forgive a well meaning healthcare provider for an error, will not forgive a provider who willfully conceals an error.
Some hospitals have reported a significant reduction in liability payments and attorney’s fees after instituting a full disclosure policy.
However, the experts seem to agree that patients are angered once they find out that errors occurred and weren’t disclosed to them. Further, nondisclosure is neither legally nor ethically a sound policy. Patient studies have revealed that patients are more likely to file suit if a physician withholds information that subsequently surfaces by another route.
In conclusion, EMS has an ethical duty to disclose errors to patients who have been harmed by them. It’s important for each EMS service to have training and policies in place for addressing how disclosure of medical errors should be handled.
References
- Kohn L, Corrigan J, eds. To Err is Human: Building a Safer Health System. National Academy Press: Washington, D.C., 2000.
- American Medical Association Council on Ethical and Judicial Affairs: Code of Medical Ethics. American Medical Association 2002. Section 8.12.
- Selbst S. The difficult duty of disclosing medical errors. Contemporary Pediatrics. 2003;6:1—9.
- Hobgood C, Bowen JB, Brice JH, et al. Do EMS personnel identify, report and disclose medical errors? Prehosp Emerg Care. 2006;10(1):21—27
- O’Connor RE, Slovis CM, Hunt RC. Eliminating errors in emergency medical services: realities and recommendations. Prehosp Emerg Care. 2002;6(1):107—113.
