Medical Error Disclosure Programs: Old Habits Die Hard

A radical change is emerging from within our health care system: Rather than deny or defend medical errors, some hospitals are acknowledging them upfront. This enlightened response has been gaining ground since 2001 when the University of Michigan Hospital introduced one of the first medical error disclosure programs: the Michigan Model.

Hospitals that adopt the model also promise to explain why the error occurred, apologize, offer fair compensation, and learn from the mistake. Unfortunately, while the program is promoted as an ethical approach that serves to protect the patient, three gaps enable these hospitals to prioritize their own interests instead:

1. The selective-disclosure gap. Rather than disclose all medical errors, the model leaves hospitals free to cherry-pick which errors to disclose. Selective disclosure is described in a prominent study as hiding errors that are “likely to trigger lawsuits, cost a lot, or both.”

2. The conflict-of-interest gap. While risk managers protect hospitals financially, the model requires that they also offer harmed patients fair compensation. These competing objectives require harmed patients to “take it on faith” that the risk manager will act against the hospital’s financial interests, and instead will “fully and fairly” compensate them.

3. The transparency gap. According to its architect, the model’s “core value” is transparency. Yet these hospitals routinely discharge their patients without providing any information about their disclosure program — they even fail to disclose that they have a disclosure program.

The first two gaps have been discussed in other articles, but the transparency gap has not. I first encountered it as a patient and later in my own research.

My findings indicate that my experience is prevalent; the transparency gap impacts many injured patients.

The medical error. I was a professional dancer and choreographer, but now I can’t balance on one leg, even for a few seconds. My career ended when a medical error and life-threatening complication resulted in brain damage permanently affecting how I talk, think, and move. The pathologist caught the error and documented it in his report: my surgeon thought he removed my brain tumor — but removed my healthy pituitary gland instead. Yet, the hospital opted not to disclose the error (i.e., the selective-disclosure gap), and discharged me without mentioning their disclosure program (i.e., the transparency gap).

After 18 months filled with MRIs and specialists who finally pieced together what happened, a neurologist noticed something curious: my surgeon failed to document the unexpected removal of my pituitary gland anywhere in my 170-page medical record. Moreover, when I arranged to have the tumor removed at a different hospital, my surgeon offered to provide a “copy” of the operative report. Instead, he sent an altered version failing to observe any of the legal documentation standards: there was no line through the original entries, no explanation for the changes, and no signature or date.

I sued the surgeon. Still, the hospital neglected to inform me of its disclosure program. Instead, they arranged for me to participate in mediation without revealing that it was part of their disclosure program.

The mediation. The hospital was now faced with the pathology report confirming the error and the steps my surgeon took to hide it — the omissions in my medical record and the altered report. The hospital’s lawyer would know that each is a potential basis for license revocation. He would also know that altering a medical report is widely considered the “kiss of death” for any malpractice defense — and is a felony under their state’s law.

Old habits die hard. The hospital refused to admit any malpractice or wrongdoing — even when confronted with the two, contradictory, signed versions of the operative report. And, despite the risk manager’s obligation under the disclosure program to offer fair compensation, the settlement offer was only a tiny fraction of what would typically result from a brain damage case like mine (i.e., the conflict-of-interest gap).

Searching for transparency. I first learned about disclosure programs a year later when I saw an article about the Michigan Model. Then, I read every disclosure program story I could find, and joined ProPublica’s “Patient Harm Community” on Facebook to get other victims’ viewpoints. I asked members to recount their experiences with disclosure programs and received two dozen heart-wrenching stories about medical errors — yet not one knew whether their hospital had a disclosure program. I found this discovery so incredible that I called their hospitals to ask one simple question: “Do you have a disclosure program?” But rather than answer, they equivocated. I was told that they weren’t sure, they weren’t authorized to answer, or they were uncomfortable talking about it.

Unsatisfied, I scoured the websites of 33 hospitals with disclosure programs and consistently found that program information, if available, requires entering precise words or phrases into the website’s search box. The effect is that, if a patient does not already know about their hospital’s disclosure program, they are unlikely to learn about it from the website.

This transparency gap explains why the group members didn’t know if their hospital had a disclosure program. In my case, I had assumed it was an isolated oversight. But, after calling the hospitals and inspecting the websites, I realized that failure to inform patients about disclosure programs might instead be a feature of the model (i.e., the transparency gap).

Why hide disclosure programs? By concealing their disclosure programs, hospitals are in the best position to control which errors come to light. And, while it has long been known that injured patients rarely sue, research indicates one reason is that patients simply don’t realize they have a claim. By hiding disclosure programs, hospitals would avoid alerting patients to the possibility of malpractice and put themselves in a position to better protect their bottom line. In fact, a study of the University of Michigan Hospital found that after implementing their model program, “claims dropped 36 percent, and lawsuits dropped 65 percent. The monthly cost of total liability and patient compensation dropped 59 percent, and legal costs dropped by 61 percent.”

Closing the gaps. Fixing the three gaps may mean that the programs no longer deliver large financial benefits. This leaves hospitals with a hard choice: Will they take the principled and honest approach the University of Michigan has been promising since 2001? Or will disclosure programs remain ripe for abuse?

Gail Handley is a patient advocate and can be reached at Disclosure Gaps.

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