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Pathologists and Medical Error Disclosure: Don't Wait for an Invitation.

The recent insight of Gallagher and colleagues (1) into the disclosure of medical error to patients is cogent; and their expertise on this sensitive topic is welcome. They emphasize as paramount "a patient's right to honest information shared with compassion about what happened to him or her..." (p1753); stress the importance of active and complete investigation of possible errors; and emphasize the (sometimes difficult) necessity that institutions provide a protected environment for those activities. (1)

The authors particularly emphasized the joint responsibility for error disclosure in situations where a physician identifies an error involving another physician who is or was "treating a patient ... with both clinicians participating in [the] disclosure conversation." (1) They distinguish, however, any physician "who lacks direct contact with the patient," such as pathologists and radiologists, suggesting that, because the treating physician's physician-patient relationship "facilitates disclosure conversations,"(p1755) the disclosure be led by the "[a]ttending physician on primary service treating the patient, with the [pathologist or radiologist] colleague invited to join [the] discussion." (1(p1755))

Medical error disclosure to patients, to the extent it has occurred at all, has been inconsistent and challenging, and pathologists have typically not been directly involved. (2) That, however, must change. Pathologists cannot be content to await an invitation to join the discussion; rather, pathologists should actively embrace the opportunity to become involved in the sometimes delicate and difficult error disclosure process. Undoubtedly, with direct involvement in a potential medical error situation, pathologists should not be content to hand responsibility to the treating physician. Medical errors involving the laboratory are frequently multifactorial, so ensuring that all details of the error are accurately depicted may be difficult or impossible if the pathologist is not actively engaged in the disclosure. An uninvolved pathologist has no way to ensure a fair and balanced disclosure and risks receiving little or no feedback regarding the patient's response to disclosure or whether everything the patient needed or wanted to learn was satisfactorily explained.

Pathologist participation in disclosure should be much broader, however, and should not be limited only to situations with direct pathologist or laboratory involvement. Participation should occur even in some situations for which the pathologist and laboratory are not directly involved. Essentially, all patients have laboratory testing or diagnoses as part of their diagnostic and therapeutic course, and questions about test results or diagnoses may arise during a disclosure for which the nonpathologist physician does not have the answers. Without a pathologist as a member of the multidisciplinary disclosure team, the circumstances of a laboratory-related error--and how that error would be prevented in the future--might be unexplainable. The presence of a pathologist could be essential for maintaining patient trust.

Although the Gallagher and colleagues scenario--focusing entirely on a medical error entirely caused by a single treating physician's actions--do not envision pathologists playing a central role in medical error disclosure, in many situations involving potential medical error, pathologists--heavily involved in laboratory management--can provide a systems-based approach to better elucidate error-prevention methods. In fact, pathologists have historically had an important disclosure role--viewed favorably by patients' families--in the presentation of autopsy findings. (3) As such, pathologists should clearly communicate their willingness to participate in all multidisciplinary medical disclosure situations to administrative and physician hospital leaders. Even when coordination of a multidisciplinary team meeting among multiple physicians with numerous time constraints proves difficult, pathologists should nonetheless endeavor to be present during the disclosure meeting to provide answers for the patient because the patient deserves clear answers.

Gallagher and colleagues limit their discussion of physician responsibilities to the situation where one treating physician identifies a possible medical error by another treating physician. Given the generality of their discussion, their omission of direct patient involvement by pathologists--for example, in the transfusion medicine and cytopathology contexts--is forgivable. Just as significantly, their article does not address situations in which a pathologist identifies a potential medical error by a non-pathologist colleague or by another pathologist, nor does the article consider the situation in which a laboratory error or other medical error is identified for which no specific blame may be placed on a single individual, yet non-blameworthy process errors are frequent occurrences.

Nowhere do Gallagher and colleagues discuss medical apologies, which are not the same as medical error disclosures. The two should not be confused; medical apology is potentially problematic. Popularized several years ago as a mechanism for reducing the risk of medical malpractice surrounding medical error disclosure, (4-6) it has since come under criticism. Although doing little to make the health care setting safer for patients, apologies chill "the open disclosure of sensitive information and accompanying frank discussion" (7(p316)) necessary for improving patient safety. Unlike other forms of disclosure, apology also establishes responsibility, which is challenging, because in many situations, "individual assignment of 'shame and blame' unfairly open up the involved individuals and organizations to liability and loss." (7(p317)) To the extent that medical apology is typically offered merely for purposes of risk management, it must be emphasized that the physician's duty to patients "requires something more than convincing them not to seek compensation through litigation for injuries caused by negligent errors ... [taking] advantage of their weakened state." (8(p342)) Accounting to the patient for a medical error via error disclosure, not apology, "can bridge the gap between adverse events and patient expectations." (7) "Requiring the last person who touched the patient to disclose without more than merely a persona of humiliation, shame, and blame"--"simply represents an iteration of the ineffective, individually oriented shame and blame approach." (9(p535))

In summary, as Gallagher and colleagues emphasize, physicians "rightly perceive the current medical liability system as flawed and understandably worry that they may not be treated fairly should a patient file a claim. But these concerns do not obviate [physicians'] duty to be truthful with patients..."(1(p1753)) If physicians expect society to address the medical malpractice issue and provide future professional protections, physicians would be well advised to behave professionally now, and "put the patient's need above their own." (1(p1754)) Like our clinical colleagues, pathologists should not wait for an invitation to participate in error disclosure--far from it--pathologists should become active participants in discussing with patients the events surrounding a potential medical error, how it was discovered, and what is being done to ensure that the medical error never happens again. They should absolutely be involved in every situation for which there is potential pathologist or laboratory error; they should invite themselves to actively participate in situations for which a laboratory issue may have played an indirect role; and they should liberally offer to participate in other, nonlaboratory-related, disclosure conversations in case a question or concern regarding the laboratory arises. It is in such an advocacy role that pathologists can best serve their patients.

References

(1.) Gallagher TH, Mello MM, Levinson W, et al. Talking with patients about other clinicians' errors. N Engl J Med. 2013; 369(18):1752-1757.

(2.) Dintzis SM, Stetsenko GY, Sitlani CM, Gronowski AM, Astion ML, Gallagher TH. Communicating pathology and laboratory errors: anatomic pathologists' and laboratory medical directors' attitudes and experiences. Am J Clin Pathol. 2011; 135(5):760-765.

(3.) Holzner B, Efficace F, Basso U, et al. Cross-cultural development of an EORTC questionnaire to assess health-related quality of life in patients with testicular cancer: the EORTC QLQ-TC26. Qual Life Res. 2013; 22(2):369-378.

(4.) Kionka EJ. Things to do (or not) to address the medical malpractice insurance problem. North Ill Univ Law Rev. 2006; 26:469-525.

(5.) Davenport AA. Forgive and forget: recognition of error and use of apology as preemptive steps to ADR or litigation in medical malpractice cases. Pepperdine Dispute Resolut Las J. 2005; 6(1)81-107.

(6.) Robbennolt JK. Apologies and medical error. Clin Orthop Relat Res. 2009; 467(2):376-382.

(7.) Raper SE. No role for apology: remedial work and the problem of medical injury. Yale J Health Policy Law Ethics. 2011; 11(2):267-330.

(8.) Teninbaum GH. How medical apology programs harm patients. Chapman Law Rev. 2011; 15:307-342. Suffolk University Law School Research Paper; No. 11-30.

(9.) Liang BA, Ren LL. Medical liability insurance and damage caps: getting beyond band aids to substantive systems treatment to improve quality and safety in healthcare. Am J Law Med. 2004; 30(4):501-541.

David A. Cohen, MD; Timothy Craig Allen, MD, ID

Accepted for publication March 25, 2014.

From the Department of Pathology and Genomic Medicine, Houston Methodist Hospital, Houston, Texas (Dr Cohen); and the Department of Pathology, University of Texas Medical Branch, Galveston (Dr Allen).

The authors have no relevant financial interest in the products or companies described in this article.

doi: 10.5858/arpa.2014-0136-ED

Reprints: Timothy Craig Allen, MD, JD, Department of Pathology, University of Texas Medical Branch, Galveston, TX 77555 (e-mail: tcallen@utmb.edu).
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Author:Cohen, David A.; Allen, Timothy Craig
Publication:Archives of Pathology & Laboratory Medicine
Date:Feb 1, 2015
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