Exploring Transparency Through Apology and Disclosure

August 14, 2013

Our malpractice lawyer counsels on a complicated case involving a delivery with an unexpected outcome and multiple health care providers involved.

John O’Grady, MD: We began discussing issues of apology and regret in our last conversation. Let’s say I've just been involved in an unfortunate case involving a major fetal complication, namely a shoulder dystocia and there are problems with how the case was managed. The patient was an obese para 2, having previously delivered 2 infants (8 lbs and 8 lbs 5 oz) following rapid labor on each occasion. Each infant was born without complication or need for anesthesia and with only minor vaginal tears.  For her present pregnancy her antepartum course was medically unremarkable although throughout her prenatal care, she was a poor historian and difficult to examine. She was a frequent no-show and resistant to recommendations. I felt I never had much rapport with her in the office.  Her lab work throughout was normal and a GTT was interpreted as normal. The fetal weight estimate at 38 weeks was < 3500 grams. 

Following the commencement of labor, she went to the hospital directly without calling my service. After her arrival at the hospital, there was a delay in calling me. Unfortunately, she experienced a precipitous delivery. I was contacted only after the infant’s head presented. Fortunately, I was on the unit evaluating another patient. When I arrived, the nurse reported rapid cranial delivery followed by retraction. Mom was out of control, in knee-chest with the head protruding. The scene was a bit chaotic. I have to admit that I froze and then did a number of things inconsistent with my practice and how I was trained. Eventually we delivered a 3950 gram boy with Erb Duchenne-type palsy. His dysfunction has not improved since the delivery about 24 hours ago. There was also a postpartum hemorrhage due to uterine atony, requiring interventions of fluid, uterotonics and finally, the transfusion of 2 units.

Now, what should I do? The family is not happy.  I feel terrible about this case. I know that care was delayed and that nursing did not do a good job performing their intrapartum care or assisting me in this difficult delivery.  I also know that I did not conform to my own standards in effectuating delivery. Given that the patient was unpleasant in the few interactions I had with her prior to delivery, the current events have certainly likely made things worse. I am concerned about the possibility of being sued and worry that anything I say to the family will only make things worse. I am also worried that if I apologize or try to explain the events that led to her baby’s injuries, anything I disclose will be used against me should litigation be initiated.  How would you counsel me? 

Kevin Giordano, Esq.: Well, we need to start with this absolute-- there needs to be communication with the patient concerning this delivery. But keep in mind that my absolute is based upon only one facet of your hypothetical case-- that there was an unexpected outcome; a baby with an Erb Duchenne-type palsy and mom having a post postpartum hemorrhage attributed to atony.
            
Obviously, beginning this type of conversation with a patient is easier and more straightforward when the adverse outcome is not due to provider error or mistake, but instead was an unavoidable complication.  It is a significantly more difficult conversation when the situation involves a potentially avoidable outcome and the lead-up to disclosure becomes more complex because many interests may be involved including those of other care providers (i.e. nursing), the institution, and the respective malpractice insurers. So, in the case that you present, the approach needs to start by immediately bringing together the stakeholders to discuss the case, identify what happened and determine how best to commence disclosing information to the patient.

O’Grady: I have read about apology as a theoretic issue before and have heard that it can be an effective tool to decrease the chances of being sued.  In my mind, I feel that I can act properly in virtually any obstetrical situation, but in this setting, I find myself uncertain, frustrated, angry and distressed. I am concerned about apologizing and appearing to accept responsibility for the outcome since I believe that I was put in a very difficult situation by events outside of my control. In addition to these emotions, I am also concerned that my apology will be meaningless since friction --or at least a lack of rapport--existed between the patient and myself before the delivery.  I do understand your point about complexity and the myriad of interests involved, but the other thing is, if we are going to proceed with an apology discussion, I do not think it can wait six weeks for a committee opinion before speaking to this woman and her family.

But there is another consideration. A colleague has reminded me that many, if not most, unilateral brachial plexus palsies will improve over time. So perhaps I shouldn't say anything now and simply hope that things for the infant will get better? Also it may be that the injury would have occurred even if I was called earlier. If I do say something, might I be creating a lawsuit by telling her that something was done wrong? Will this essentially result in her using my apology against me?

Giordano: So it’s a natural impulse to question whether to say anything at all. In this case, you have a difficult patient who you have no reason to believe will be accepting of your empathy or forgiving with the admission of mistakes. Furthermore, depending upon your state's laws, although a statement of empathy may be protected, your acknowledgment of medical error has the potential to be used as an admission of liability against you at trial, particularly if you later attempt to disown it during litigation. Of course how any of these statements are treated in the courtroom obviously will depend upon the particular law of your jurisdiction. But here’s the thing: If the purpose for considering disclosure is merely an effort to blunt the potential for litigation while at the same time avoid making any statements that you’re concerned might become evidence against you, then the apology is likely going to be inadequate and probably viewed as fulfilling a self-interest of the physician or institution; a risk management tool if you will. This would likely do more harm than good, jeopardize an already tenuous relationship given the adverse outcome, and have the effect of increasing, rather than diminishing, the potential for litigation.
 
I would counsel you to shift the paradigm. Transparency and ethical responsibilities argue for early and effective disclosure --after consultation with all the players who have an identified stake in the outcome. This does need to be done expeditiously.  Unfortunately, celerity does not characterize most hospital proceedings.  Conversely however, haste should not forsake a thorough consideration of each of the provider’s interests. The ability of any system of transparency to create improved safety depends in large part upon health care providers identifying and reporting adverse events or near-misses early.  Therefore providers must believe that a serious effort will be undertaken to consider and evaluate their respective positions. The investigation into the clinical events is crucial in order to objectively determine what happened and then guide the approach to apology. If there is culpability, then all stakeholders must be involved in the process for determining the root cause(s) of that harm. Guidance from the institution is needed on how to convey that information to the patient. Ultimately, regardless of whether disclosure will be solely empathetic in nature or include acknowledgement of error, preparation is crucial before undertaking sitting down with the patient.

The difficulty in ob/gyn cases is that it is not unusual for the issues to be complex and the final injury not to be immediately known. For instance, in our case, the reasons for any delay in care must be examined, as well as an evaluation of the efforts that were involved once maneuvers were undertaken to address the dystocia. But it must also be considered that once there is a dystocia, injuries cannot always be avoided and furthermore, many Erb Duchenne-type palsies can improve with time. It may be that this infant will fall into that category.

So it would need to be understood by all, that once a decision is made about the extent of the apology to be given, the process may require more than one meeting while the outcome of an investigation is pending and also allowing a sufficient amount of time to pass in order to determine the extent of any injury.  During the interim, the institution may seek to identify needs that the patient may have and determine if it makes sense to assist in any way with those needs. If. ultimately as part of the process, an offer of compensation is going to be made in an effort to legally resolve the case with the patient, this should most often be done apart from any meeting where the initial apology being communicated. 

Ultimately, each case will proceed differently and in most instances should be led by the institution. Individual health care professionals should be leery of undertaking this process on their own particularly if the disclosure will be something more than a statement of empathy.

O'Grady: While I was having these thoughts and preparing my discussion paper for you, I discovered that the nurses had filed an Incident Report which obviously is based upon their perhaps biased recollections of the events and my actions. Although I understand that they have acknowledged some errors in not summoning me as promptly as they should have, I also understand that they might be suggesting that they called me earlier than they did. This report may be for Quality Assurance purposes and presumably protected from discovery, but I am concerned that they are drawing battle lines as I noted that they were also feverishly adding retrospective notes to the chart after their meeting with the nursing supervisor. Upon reviewing the computer entries, I’m not comfortable with their phraseology as some of it remains ambiguous.  I worry that by putting my version of the events into the medical record after theirs will only highlight the existence of a controversy. So, what should I do next? Should I write a post-event note also, outlining what I experienced in the delivery beyond my original dictated delivery note? What does all this say about the potential for collaborating on the issue of disclosure?

Giordano: Focusing on the disclosure aspect, if the current activity is intended to assuage the chart to protect someone’s interests, essentially hiding or smoothing over errors that caused or contributed to the bad outcome, then it's going to be difficult if not impossible to have an effective disclosure process.  If providers are going to attempt to shift blame or run from mistakes, a culture of denial will persist and improvements in care will be blocked. Instead, it is best to objectively review the record and then work collaboratively to identify all the deficiencies in care. The focus should not be upon allocating blame, but instead upon an honest appraisal of the events in order to improve systems and provider / birth attendant performance. As in most complex events, often there are missed opportunities at different levels to avoid a bad outcome and rarely is an adverse event the result of only one actor. Often, for a patient disclosure process to be effective, it will include discussing with the patient the methods the institution will be undertaking to avoid similar problems with care in the future. Therefore, unless there has been an honest assessment of all care provided, there is risk that the patient will be less than satisfied with the disclosure and the mistakes remain destined to be repeated.
   
That said, regarding the medical documentation, if in retrospect, there is new information or if you perceive that your original note is inaccurate or incomplete, then you can certainly dictate or write a post event note that clearly identifies it as such. However any addendum should be factual in nature and must avoid finger pointing as well as the appearance of being self-serving.  An incident report can also be created solely for purpose of Quality Assurance which, if done in accordance with hospital policy, will likely be precluded from discovery. 

O’Grady: So my take-away seems to be that, given the complexity of issues presented in the case presented, as well as the many varied interests that may be involved, the apology and disclosure process needs to be led by the institution and not the individual providers. The success of the apology process will likely only come about if there is full transparency surrounding the events of the delivery.  And I can see, that if there is true transparency, it could lead to real change.  It seems that institutions must move any apology and disclosure procedure beyond the Administrative level so that this culture is vested at every level within the hospital.  It seems that we have agreed to flush this out some of these points in our next submission.