Rarely does a week pass without at least one account in the popular press of a medical error with devastating
consequences for a patient and his or her family. Not all of them receive as intense media scrutiny as
the young transplant recipient at Duke Medical Center who died as a consequence of the failure of the
transplant physician to confirm compatibility between donor and recipient.
Several years ago, the Institute of Medicine published a report entitled To Err Is Human: Building a
Safer Health System, in which it was asserted that between 44,000 and 98,000 Americans die each year as
a result of medical errors. Shortly after the report was published, critics began to challenge the data
in widely read medical journals such as JAMA, in turn leading to defenses of the data in the same journals
by those involved in the original report. And so the controversy continues.
The Joint Commission for the Accreditation of Health Care Organizations (JCAHO) also weighed in by promulgating
a new standard for the "Patient Rights and Organizational Ethics" chapter of its Accreditation Manual
for Hospitals, providing that: "Patients and, when appropriate, their families are informed about the
outcomes of care, including unanticipated outcomes." At first glance, this standard appears to be nothing
more than confirmation of a principle set forth in the American Medical Association Code of Medical Ethics,
i.e., "A physician shall deal honestly with patients and colleagues, and strive to expose those physicians
deficient in character or competence, or who engage in fraud or deception." The Ethics Manual of the American
College of Physicians (ACP) is even more specific and on point, providing that physicians should disclose
to patients information about errors of procedure or judgment if such information is material to the patient's
There are at least two dimensions to this component of medical ethics and professionalism. The first
pertains to the ethical obligation of the physician to possess and consistently demonstrate the requisite
clinical competencies. The second pertains to the ethical obligation to be honest with patients about
all matters relevant to their medical condition and treatment. Our primary focus here will be the latter.
We will also leave to another opportunity the difficulty in reaching consensus on what constitutes a medical
error and in allocating responsibility among health care professionals and organizational or institutional
systems that impact the quality of patient care. Similarly, we will leave to another discussion whether
the duty to disclose extends to cases in which there has been a medical error without an adverse impact
upon the patient the "no harm, no foul" idea. Finally, we will also need to defer the intriguing question
of whether the ACP's limitation of the duty to disclose to those situations in which the patient's well-being
requires that he or she be informed of an error sets the threshold of disclosure so high that it would
rarely, if ever, be incumbent upon a physician to do so.
Question: If the doctrine of informed consent relates
to patient participation in the choice of treatment, how can it create a duty to disclose medical error?
Staunch advocates of truth telling in medical practice, who consider honesty and full disclosure essential
features of the virtuous physician, insist that physicians must apprise their patients of any medical
error that has had an adverse impact. The ethical obligation of the physician to be candid with patients
is broader than the doctrine of informed consent. It arises out of the fiduciary nature of the physicianpatient
relationship, which is one of trust and confidence. Such relationships require honesty and forthrightness
on the part of those who enter into them. Duplicity, deception, or nondisclosure of information that is
integral to the relationship is deemed to be inherently pernicious regardless of when it may occur.
Question: Why must physicians shoulder a responsibility
that would compel them to act against their professional interest and perhaps the financial well being
of their families?
Discussion of the purported duty of physicians to disclose medical error reveals less than a clear consensus
as to what the professional obligation entails. Two arguments in particular have been consistently put
forward in order to justify the nondisclosure of medical error to patients. The first relates directly
to the malpractice implications of medical error, and suggests a sort of Fifth Amendment right against
selfincrimination on the part of physicians. No one, so the argument runs, even the professional in the
fiduciary relationship of physician and patient, should be under an ethical obligation to engage in self-incrimination
and thereby provide a potential adversary with the informational basis for initiating legal proceedings
that are (at least in the eyes of physicians) essentially punitive in nature.
The second argument is based upon a less selfserving and, indeed, purportedly beneficent purpose. According
to this argument, disclosure to a patient that an adverse outcome was or may have been the product of
a medical error will increase the patient's anxiety and stress, as well as undermine the trust that is
essential to the therapeutic relationship. Since an ancient axiom of the medical profession has been "primum
non nocere" (first do no harm), nondisclosure of medical error should be seen as consistent with this
axiom. This argument draws to some extent upon one of the well-recognized exceptions to the doctrine of
informed consent the so-called "therapeutic privilege." According to this exception, if a physician,
in the exercise of sound professional judgment, reasonably believes that the disclosure of certain information
to a patient poses a risk of significant harm (to the patient, not the physician), that information can
be withheld. One can also readily discern how invoking a variation on the therapeutic privilege in circumstances
of medical error plays into a potential "escape clause" in the ACP language by asserting that such a disclosure
would not promote, but rather undermine the patient's well-being.
In view of the survey data indicating the overwhelming preference of patients to be informed of medical
errors affecting their care, the only basis for insisting that nondisclosure of error is truly motivated
by beneficence toward the patient rather than protection of the physician, would be that physicians know
better than patients what is in their (the patient's) best interest. One of the central features of the
paradigm shift from the paternalistic to the shared decision making paradigm for the physician-patient
relationship was the recognition that harm is a value-laden concept. Ultimately, it must be the patient
as autonomous person, and not the physician, who is the arbiter of what constitutes harm to them.
Question: What typically happens to the conscientious
physician who follows such ethical admonitions to disclose their mistakes to patients?
Qualitative studies and much anecdotal evidence indicate that it is more often the effort to conceal
medical error, rather than the timely, candid, yet sensitive disclosure of it, that is more likely to
precipitate malpractice litigation. Patients who are conscientiously and compassionately advised by their
physicians that a medical error has occurred, even when the consequences of the error are significant,
appreciate the candid disclosure and are much less likely to sue than are those patients who are kept
in the dark. Patients, or in the cases in which medical error has caused or contributed to the patient's
death, family members who subsequently learn that medical error has been "covered up" are the most likely
to initiate malpractice litigation. A reason often cited by medical malpractice plaintiffs for the filing
of such suits is that patients or families were desperately searching for "answers" to persistent questions
that had gone unanswered by those responsible for providing care. Another prominent motivating factor
for such lawsuits is to send a message to health care professionals that practices, procedures, or policies
may need to be changed so that other patients will not be harmed in the same way. Thus disclosure of medical
error should be accompanied, when appropriate, by reasonable assurances to the patient or family that
remedial measures will be undertaken in order to reduce the likelihood of similar problems in the future.
A prominent example of the benefits of a policy of disclosing medical error to patients or their families
is the Veterans Affairs Medical Center in Lexington, Kentucky, which has attributed a marked reduction
in malpractice claim totals in large measure to a policy of prompt disclosure of medical error, along
with appropriate apologies, waiver of costs, and payment for injuries resulting from the error.
Question: What is the policy of the UC Davis Health
System on this issue?
Faculty members and leaders of the Health System are actively involved in initiatives to minimize medical
errors. It is the policy of the Health System's risk management office to candidly discuss medical errors
with patients and families.