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SINCE the time of the First Fleet, Australians have learnt that you don’t dob in a mate. But what if your mate is a colleague and you think what they’ve done has caused harm to a patient?
It’s more complex than simply saying the patient must be told the truth. If you think a colleague has made an error, not only do you have to consider what to say to the patient, but also what to say to your colleague. What if your colleague is your supervisor, or a competitor?
An article recently published in the New England Journal of Medicine (NEJM) outlines the challenges faced by practitioners when confronted by the apparent error of a colleague. Challenges include embarrassment, awkwardness and fear of how a colleague will react.
As well, a climate of increasing regulation of the medical profession, and the fear of legal or disciplinary action can make even the most insightful practitioner nervous and defensive.
Open disclosure has been promoted in the Australian Open Disclosure Framework, released by the Australian Commission on Safety and Quality in Health Care in March 2013, as a practice that benefits patients and clinicians involved in adverse events. Avant has supported open disclosure since the national open disclosure standard was first released in Australia in 2003.
Despite the passing of a decade, the notion of disclosing an error to a patient still causes concern to practitioners for many reasons, not the least of which is that admitting an error may be seen as an admission of liability. When the error is that of a colleague or has occurred at another institution, there are even more practical issues to consider.
Of the several steps in the disclosure process, the most important is to find out the facts.
At Avant we have seen many cases where a comment to a patient about the conduct of a colleague without all the facts has been the impetus for a claim or complaint. Many times we have heard a doctor lament “If only Dr X had rung me to find out what happened”.
On the other hand it sometimes might seem easier to put your head in the sand and just get on and treat the patient, but we would endorse the NEJM authors’ entreaty to “explore, do not ignore”.
In Avant’s experience, failure to deal with an adverse event in a timely and meaningful way is more likely to give rise to a claim or complaint.
The NEJM authors recommend a process that starts with a colleague-to-colleague conversation about what happened. This requires a commitment by practitioners to openly discuss quality issues; a commitment they say is “fundamental to the self-regulation that is at the heart of medical professionalism”.
Self-regulation is one of the traditional hallmarks of the practice of medicine. At the level of the individual, self-regulation relies on practitioners having the insight to realise when they have made an error and to reflect on it. Self-regulation encourages a supportive culture that recognises that mistakes happen and lessons can be learnt from them.
Although the new Open Disclosure Framework does not deal directly with errors by colleagues, it recognises that they do occur and outlines steps for determining whether the adverse event has been acknowledged and the open disclosure process has started. If it hasn’t, it should be initiated after consultation and in collaboration with the individuals and organisations involved. This process is consistent with the NEJM authors’ recommendations for a productive and collaborative approach to errors by colleagues.
In a society that expects medicine to cure all, it is not always easy for a practitioner to admit they have made a mistake.
However, a supportive culture, where communication is open and honest, adverse outcomes are discussed and lessons learned, plays a vital role in maintaining trust in our doctors and the health care system.
Georgie Haysom is the head of advocacy at Avant.
Thank you, Sue, for clarification. Given that view, apply it to “devastated’s” question of “when does error become negligence”. One may be working out a case, trialling one therapy over another, be awaiting results or to review the result of a pending investigation in the light of diagnosis and or treatment. In such a case the matter of diagnosis remains in doubt. It is acceptable to have a primary or working diagnosis and to have others in mind. This case is not closed. An open mind is being applied to it, and in some cases more than one diagnosis or treatment may be applied. Misdiagnosis is the failure to raise the question and/or declare that there is no need to review, obtain a second opinion, or no need to treat, when in fact the presenting problem has not been addressed either correctly, or at all considered as a result of which, treatment is denied. In such a situation the patient is discharged without any change to his/her presenting complaint, as if it was not present. And this may result in delay, which may add harm. These are cases which Professor Hargreaves sees. our obligation, according to the Hippocratic Oath, is “in the first instance, not do harm”, to treat with all at one’s disposal and to do so to satisfy the needs, as they present to us, of our patients. Risk is inherent in everything. Our duty is to minimise risk of misdiagnosis, not dismiss it, and to improve a presenting situation, not exacerbate it. By doing so we cannot be regarded as negligent. By the way, by approbation I meant to say, sanction – in a disciplinary way, as the word does mean sanction for approval. Thanks. I hope this helps.
Dr John B Myers states ”Misdiagnosis is negligence.” Human error is not the same as negligence. If it were, we would all be guilty.
Dear Sue, i am not Professor/Mr Hargreaves but i am a Consultant Physician and clinical scientist with medico-legal experience. How does one distinguish between neglect or incompetence and misdiagnosis? Misdiagnosis is negligence. Where the question of “error of judgement” arises, is really a fall back position in an attempt to satisfy those who would like to make a finding of unprofessional or misconduct, and to avoid a reprimand or sanction of any kind. It may be said to be “an error of judgment” when what one has done is regarded by whomever as outside the norm, but is actually in the patient’s best interest i.e. according to their wishes, e.g. social and psychological preference, but someone wishes to put a slur or reason to find fault for whatever reason on whatever action was taken to assist the patient, by not taking cognisance of declared intent in respect of the patient’s wish and context. In fact, error of judgement is not a misdiagnosis at all, but may simply be a more than usual step to help the patient, and ought to be viewed as such, and instead of being a reason for approbation, it ought, in the context of fairness, to be commended
Dear disillusioned, we should be able to say “boo!” to patients who wish to scare us and let that be the end of it. But a public register of the vexatious and mad and bad amongst them to warm other doctors and health practitioners is an essential, together with the expectation of fairness and justice for all. We also need to be compensated for what is a free-for-all fight in which, at present, they have all the advantage, but, be consoled, buddy, we, thank G-d, have both good and right on our side. Sooner rather than later, we will and I believe are beginning to see a change in the tide. Hang in there!
Dr Bill. I love the view from your high ground and would hope to share that vantage point. Patients are indeed entitled to be mad and bad, and we doctors should have broad enough shoulders to deal with that. I hope these are the thoughts which go through your mind as the hands of the nutter close around your throat…..either literally or figuratively with the willing assistance of his lawyers.
Ian Hargreaves – all providers of second or subsequent opinions must find diagnoses that have been previously missed. Do you distinguish those that appear to reflect incompetence or neglect? Do you see repeated errors? We all have an obligation to report legitimate concerns where there is evidence of systematic/repeated error or evidence suggesting negligence – though occasional missed diagnoses are common to everyone.
As a hand surgeon with a tertiary referral practice, I see many patients who have been misdiagnosed or mistreated. Some years I asked Avant if it wanted to know about cases such as large numbers of missed scaphoid fractures, as their case reports often detail; but they replied they only wanted to hear of my negligence, not the second-hand negligence I treat on a daily basis. It’s easy to tell the patient ‘Here is your fracture on the xray from 6 months ago, and here it is today, which looks much worse’. It is difficult to answer the reply ‘I’m a builder and I can see that – why couldn’t the doctor who did the xray?’ or ‘when I saw the doctor he didn’t even take the xray out of the packet’ (actual patient quotes).
When I see such a patient, I ask his permission to send a copy of my letter to the referring doctor, on to the original doctor. About 90% decline. Usually patients are happier to have letters sent to the ED director about mistakes in emergency, but almost no-one wants a letter sent to his previous surgeon. The figures are similar when I see a patient for a second opinion, even when the opinion is confirmatory. In most cases it seems the patient wants a ‘clean break’ from their previous doctor. A couple of times I have phoned the ED director with the patient there, about egregious errors like missed compartment syndrome or pressure sores under dressings. On the positive side, with the patient’s permission I’ve contacted ED directors about great diagnostic saves by their junior staff.
So far this week, I’ve seen 2 missed scaphoids, one missed scapholunate tear, one mistreated radial fracture and one incomplete carpal tunnel release. It’s only Tuesday.
Thank you for all these comments which support the following, in my view: 1. patients are patients and in some cases not them, who are thankful, but a family member or third party who has an axe to grind complains. 2. Or a complaint is lodged based on misunderstanding and lack of communication and information 3. Or advice from a supportive colleague who understands the situation from both sides has not been obtained, as Bill asks, whether such advice and self-reflection occurred and 4. as Sue Ieraci explains, range of behaviour which includes error of judgement can occur, requires an understanding and reflective non-agenda driven disciplinary Board which is not self-serving – which 5. is the real problem. 6. In my view, patients have a right to be mad and we can expect aberrant behaviour from them, blame and manipulation and misrepresentation, but 7. the Medical Board/AHPRA are not our patients. Neither are we theirs, and as a profession we need to eradicate intentional and self serving Medical Board and Tribunal, as well as certain court judges, intentions and actions, which 8. do not protect the public as they would have us believe they do, nor can their actions be perceived as a genuine intent to guide doctors. 9. We have a duty to our patients and the public, as well as our profession, to address this by writing to health ministers and setting up a website, to obtain support to have the laws reviewed and changed and to monitor the application of those laws by Tribunals, courts and Boards. 10. A System of Evaluated Decisions is required to prospectively and objectively evaluate any decision which affects the life of an individual or which purports to protect the public 11. and to effect compensation and award costs when evaluation shows this is deserved.
To the professional victim – this is very sad to hear. I am wondering whether you feel you would have been “comfortable” and better off by turning a blind eye to what you were concerned about or that perhaps the entire situation could have been better handled? Especially support from the profession.
One of the real issues in systematic clinical governance is when the system fails to recognise that human error is inevitable. We have accepted complication rates for physical procedures like surgery, but no formal acceptance of an error rate for cognitive processes. Practitioners should be held to human standards – doing their best with available resources – but not all ”errors” of judgment can be avoided. Investigation of alleged errors of judgment should be investigated, but not with hindsight, and with an adequate ”cognitive autopsy” to understand what factors influenced the decision-making. Neglect and incompetence must be acted upon – but many errors or judgment involve neither of those factors, but simple human error – often unforeseeable.
We are all aware of the case against Dr Patel in Queensland. What many fail to remember is that Toni Hoffman, the nurse who raised question about Patel, was bullied, harrassed and vilified by the medical system.
I can atest to the enormous social and professional cost of “raising concerns”. Some time back I was approached by a person who raised concerns about a doctor in the same practice as myself. I realised the situation needed to be handled carefully so I rang my medical insurer for advice. After a lengthy discussion we agree on a plan where I spoke to a senior partner and assumed that due process would unfold.
For my troubles I was bullied, harrassed and vilified to the point that I resigned from the practice. At this point I was informed that my ex-partners were going to “run me out of town”.
In response to disillusioned doc. I do not agree that “noble and honourable professional behaviour presupposes that all parties will act reasonably”. By virtue of the medical profession’s status in society it is encumbent upon us that WE do behave in such a way and our job would certainly be made easier AND or our treatment likely more effective if this behavour and attitude were reciprocated. BUT to allow this expectation to be a requirement for good and honest care and treatment would in my (humble) view be unprofessional. No doubt there are some of our colleagues who deiberately place themselves geographically, economically and professionally in situations where they are much more likely to enjoy these interactions – good luck to them – but I sense that those spaces are becoming increasingly crowded.
My view is that we have to take the rough with the smooth, be assertive where it is appropriate in terms of protecting one’s dignity (and safety) and trust that our professional society or college, and perhaps even the law will assist in protecting us. On the other hand I think we in the profession are also uniquely placed to be able to have an objective view about poor behaviour or care but we have to keep an open and critical mind. Idealistic – some might say – but I think I have been around long enough and seen many different sides of the profession to hold this belief.
It is terrible to lose a daughter but the oncologist’s remark as you report it was tactless, insensitive and defamatory. There is more than one viewpoint here. The surgeon may have felt, with some reason, that chemotherapy etc may not alter the outcome but just make the inevitable more miserable. He may have been firm on that as there is a natural and very strong tendency to “clutch at straws” in this sort of situation. This is not my field of medicine and I wasn’t there to hear what was said, I am just pointing out that this distressing situation may not really be indicative of such poor standards by the surgeon your daughter trusted.
If reported accurately your story indicates poor behaviour by either or both of the doctors involved and on behalf of my profession I apologise.
Noble and honourable professional behaviour presupposes that all parties will act reasonably. Sadly some patients (and possibly doctors or other medical workers) are mentally disturbed, delusional, paranoid or outright psychopathic. If you are unlucky enough to care for such a person, and that person decides to make you the object of their displeasure, you would do well to think very carefully about how you deal with a “mistake” be that imagined or real.
Dear Madam (devastated), i hope you will be consoled. From your description it appears that on review metastases are noted on the June PET scan. Were these actually evident at the time? The fact that a PET scan was done suggests treatment and investigations were done and the PET scan result merely reassured the surgeon. Perhaps it was not until the PET scan in August that it became evident that the PET scan images, which is all it is, a metabolic reflection, performed in June, were in fact secondaries. These facts have to be known and may not have been known except in hindsight. It is also important to know what the effect of chem-treatment was/is likely to yield. Treatment options do need to be discussed with patients, called informed consent. It would have been prudent to have obtained an oncologist’s opinion. Did your daughter have a general practitioner whom she attended, or whomever referred her to the surgeon, who could have referred her on for this? The article discusses collegiate support and discussion. I do hope this letter /comment facilitates this collegiate practice. Addressing matters early so that questions such as these can be answered and doubts put to rest is needed. Failure to deal with issues at the coal face, contemporaneously, is clearly of importance. What is required as the article indicates, is honest disclosure by both the doctor and the patient, to iron out any misunderstanding, which avoids unnecessary and costly litigation and unaccountable and inordinate Board action done without due process. Despite reassurances such action is not “protective” of the public interest nor is it a guide to doctors. Quality & Safety apply to products & services. Responsibility & Rights apply to doctors and patients.
Thank you Dr Bill. In retrospect a complaint at this stage might only serve to reprimand the surgeon and do little to alleviate our grief. The medical oncologist who had to tell my daughter that he could not help her said the surgeon was ego driven and deserved “a kick in the behind”. I expect that any request for and explanation from me would be ignored. I went to every one of my daughter’s appointments with him and had my questions dismissed as interference. Perhaps I should give him the opportunity to answer for his lack of urgency.
Dear Devastated
I am very sorry to hear about the loss of your daughter so recently. It is clear that you have many valid questions that deserve to be answered. It is very difficult to provide a short response to these big questions with potentially complex medical explanations that you have. Probably the first place to start is with your daughter’s GP and the surgeon concerned. If the responses that you get are not to your satisfaction, then most (if not all states) have organisations or services that are dedicated to dealing with consumer complaints about health care. I hope that may be useful to you.
As a layperson, when does delay in treatment or failure to consult in a timely framework, become an “error”? Some practitioners desire to maintain control over the treatment of a patient to the detriment of the patient’s welfare. My daughter died recently from melanoma. Her surgeon had performed several operations to remove lesions but failed to refer her to a medical oncologist despite a number of requests. Because of her loyalty to him by the time he did refer her when he could no longer operate, it was too late for medical intervention. A comparison of a PetScan done in late June 2013 with one done in late August showed that there were indications of metastases in the June scan, but she was not referred to a medical oncologist until August. My daughter had full cover private medical insurance. Someone please explain.
The protective privilege ends where the public peril begins.