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Module 5: Disclosing Errors

Upon completion of this module, the resident should be able to:

  1. Describe, in outline, the history of the ethics of truth-telling.
  2. Describe and evaluate the different ethical justifications for truth-telling in general and for disclosing medical error in particular.
  3. Describe Buckman's six-step method for breaking bad news.

Module: 5 / Truth Telling -Breaking Bad News - Disclosing Medical Error

Contents

  1. Framing the Challenges: Clinical Scenarios
  2. The Historical, Legal, And Ethical Background
  3. Breaking Bad News
  4. Disclosing Medical Error
  5. Cases
  6. Questions for Discussion, Analysis and Reflection

Framing the Challenges: Clinical Scenarios

John A. is a 27-year male who suffers from chronic, debilitating depression and lives at home with his parents. He has been referred to you by his internist for work up of suspected renal carcinoma. John’s father accompanied him to your office and after the examination, the father spoke privately with you and told you that if the results of the work-up were “not good,” you should not, under any circumstances, tell John directly.

You are a third-year resident with a family history of migraines. Until now, your migraines have been relatively rare occurrences but, perhaps due to the stress of your training, they have become more frequent. In fact, you have developed what appear to be other, perhaps related neurological symptoms, the most troubling of which has been an apparent grand mal seizure. You even have had a minor automobile accident as a result of what you believe was a brief seizure. You are paralyzed with fear about the potential consequences of your apparent medical problems for your future as a urologist.

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Historial, Legal, and Ethical Background

Module 3 described the long, venerable history of the ethical precepts pertaining to the duty to protect confidentiality. From an ethical perspective, however, the history of truth-telling in medicine is, at best, “checkered”: it has only been within the last 50 years that physicians have embraced the argument that truth-telling is fundamental to the ethical practice of medicine. In one of the earliest texts in the Western medical tradition, in the treatise entitled Decorum XVI in the Hippocratic Corpus, the writer advises the physician on the proper way to interact with patients: “Perform all this calmly and adroitly, concealing most things from the patient while you are attending to him. Give necessary orders with cheerfulness and serenity, turning his attention away from what is being done to him. Sometimes reprove sharply and empathically, and sometimes comfort with solicitude and attention, revealing nothing of the patient’s future or present condition. For many patients, through this cause, have taken a turn for the worse, I mean by the declaration of what is present or by a forecast of what is to come.” In other words, concealment—non-disclosure—of the truth prevents, rather than causes harm. The same argument is explicit in this excerpt from the first Code of Ethics developed by the American Medical Association in 1847: “The life of a sick person can be shortened not only by the acts, but also by the words or the manner of a physician. It is … a sacred duty to guard himself carefully in this respect and to avoid all things which have a tendency to discourage the patient and to depress his spirits.” In his Medical Essays, the justly renowned Oliver Wendell Holmes wrote: “The face of a physician, like that of a diplomatist, should be impenetrable. Nature is a benevolent old hypocrite; she cheats the sick and the dying with illusions better than any anodynes ... Some shrewd old doctors have a few phrases … for patients (who) insist on knowing the pathology of their complaints without the slightest capacity of understanding the scientific explanation. I have known the term ‘spinal irritation’ to serve well on such occasions, but … nothing on the whole has covered so much ground, and meant so little, and given such profound satisfaction to all parties, as the magnificent phrase ‘congestion of the portal system’.” The routine practice of the assumptions and presumptions inherent in these beliefs is called “therapeutic privilege.”

This deep-seated prejudice against truth-telling remained in force well into the 20th century. In a 1961 landmark survey, 90 percent of the 219 physicians queried stated that they would not disclose a cancer diagnosis to a patient (Oken, D. What to tell cancer patients: a study of attitudes. The Journal of American Medical Association, 1961; 175: 1120-8.) Nearly twenty years later, however, it was clear—again from survey data—that a profound shift in attitudes had occurred. Ninety-seven percent of the 264 physicians surveyed in a study stated that they would disclose such a diagnosis to a patient. (Novack, D., Plumber, R., Smith, R., Ochtill, H., Morrow, G., Bennett, J. Changes in physician attitudes toward telling the cancer patient. The Journal of American Medical Association, 1979; 241: 897-900.) What had happened? It is likely that the change in physician attitudes was a function of broader cultural changes, catalyzed by the social movements of the mid to late 1960s and early 1970s—movements that challenged authority and validated the dignity, worth, and autonomy of the individual. The ethic and ethos of paternalism in medical practice began to give way to a new emphasis, first, on patient autonomy and, more recently, on shared decision making—on collaboration between physician and patient. To realize this emergent ideal, it has been argued, physicians must bridge the knowledge gap that separates them from their patients by striving to disclose as much information as is practical to their patients. Only the informed can participate authentically in their care.

Thus, the practice of truth-telling in medicine can be ethically justified as follows:

  • Trust is fundamental to the fiduciary relationship of physician to patient: honest, forthright disclosure and discussion – of a diagnosis or prognosis, of therapeutic options – is critical to generating and sustaining trust between patient and physician as well as to keeping the patient informed and engaged in his or her own care.
  • Telling the truth to patients is an essential way in which physicians (and others) demonstrate respect for the autonomy of their patients and enable them to participate in authentically shared decision making.
  • Truth telling exemplifies the clinical virtues of honesty and integrity—as well as those of compassion and empathy; few if any of us wish to be deceived in any aspect of our lives and want as well as need to be well informed.
  • Justice at the bedside—what is often referred to as commutative justice—demands the individual patient be provided with what he or she is owed: the truth.
  • Deception can harm patients in numerous ways. First, to fail to tell the truth is to fail to respect patients (and their surrogates). Second, to deceive is to deprive a patient of the information critical to full and active participation in health care decision making.
  • Most empirical studies support the claim that patients want the truth about their diagnoses, prognoses and therapeutic options.

Therapeutic privilege, the withholding of the truth from a patient, is now largely discredited, but this is not to say that there are NO circumstances in which it is prudent to withhold the truth. Although the presumption is always in favor of disclosing, there may be circumstances when or where it is legitimate to withhold: in particular cultural contexts, for example, it may be the practice to withhold the truth of a poor prognosis from a patient but to disclose that truth to another family member.

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Breaking Bad News

Delivering bad news—for example, telling a patient that he is seriously or terminally ill—is one of the more challenging tasks in medical practice. This is clear from the previous review of the history of truth telling in medicine. It is only within the last several decades that consensus has developed in support of the idea that patients (and their families) should be given bad news, including the bad news of a serious diagnosis, as well as that of a medical error. To aid physicians in learning and carrying out this task, experts in the art of physician-patient communication have turned their attention to the “how” of delivering bad news. One of the best known methods is that of Robert Buckman, who advocates the following six-step protocol for breaking bad news:

  1. Get started by choosing a private, comfortable place; by asking the patient if s/he would like anyone else present; and by asking, How are you right now?
  2. Determine what the patient knows, by asking the patient what s/he’s been told about the illness and what s/he understands
  3. Determine how much the patient wants to know, by asking how detailed the patient would like you, as the physician, to be in describing and explaining the illness
  4. Deliver the bad news, by establishing your agenda before meeting with the patient (i.e., deciding what needs to be communicated, e.g., a diagnosis, a treatment plan, a prognosis); by focusing on, at most, one or two topics; and by giving the information, slowly and in small segments, separated by pauses devoted to determining whether the patient understands what has just been said
  5. Respond to the patient’s reactions and feelings, by listening, observing and empathizing—by saying something along the lines of “Could you tell me how you are feeling about all of this?”
  6. Plan ahead and follow up, by integrating the information that has just been conveyed with the patient’s responses and questions and by developing a plan for next steps

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Disclosing Medical Error

According to the Institute of Medicine’s report entitled To Err Is Human: Building a Safer Health System, “[S]izable numbers of Americans are harmed as a result of medical errors. Two studies of large samples of hospital admissions, one in New York using 1984 data and another in Colorado and Utah using 1992 data, found that the proportion of hospital admissions experiencing an adverse event, defined as injuries caused by medical management, were 3.7 and 2.9 percent, respectively. The proportion of adverse events attributable to errors (i.e., preventable adverse events) was 58 percent in New York, and 53 percent in Colorado and Utah. Preventable adverse events are a leading cause of death in the United States. When extrapolated to the over 33.6 million admissions to U.S. hospitals in 1997, the results of these two studies imply that at least 44,000 and perhaps as many as 98,000 Americans die in hospitals each year as a result of medical errors.” (Institute of Medicine, To Err is Human: Building a Safer Health System, Washington, D.C.: The National Academies Press, 26)

One year after the publication of the IOM report, the authors of an article in The Journal of the American Medical Association estimated that there are 12,000 deaths per year in American hospitals due to unnecessary surgery, 7,000 deaths per year due to medication errors, and 20,000 deaths per year due to other errors. (Starfield, B. Is US health really the best in the world? The Journal of the American Medical Association. 2000; 284:483-485.) According to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), 76 percent of surgical errors involve surgery on the wrong body part or site, 13 percent involve surgery on the wrong patient, and 11 percent involve the wrong surgical procedure. As for the distribution of surgical errors among surgical disciplines, JCAHO reported that most errors—41 percent—occur in orthopedic surgery, 14 percent in neurosurgery, 11 percent to urologic surgery, and the remainder is dispersed among dental/oral maxillofacial, cardiovascular-thoracic, ear-nose-throat, and ophthalmologic surgery.

Medical errors are adverse events that are preventable. The adversity—the harm—suffered by patients is a consequence of one or both of two basic forms of error: (1) errors of commission, i.e., errors springing from some action or procedure, and (2) errors of omission, errors that result from what has not been done

The ethical justifications for truth telling, in general, are broadly applicable as rationales for disclosing medical error. Deceiving a patient about an error or failing to disclose the error to the patient undermines the trust at the center of fiduciary relationships. Although some defenders of deception or non-disclosure may argue that these practices are protective of patients, such an argument is, at best, specious: it provides only “thin cover” for the placement of professional self-interests before the best interests of patients. Moreover, deception or non-disclosure of medical error is sometimes defended as a prophylactic against being sued. Surveys, however, have indicated that patients are less likely to bring malpractice claims against physicians when physicians disclose, rather than conceal error.

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Cases

Case One: The “patient” in this case is 35-year-old male. He has come to you, ostensibly out of concerns about sexual performance. Although you determine that he does not, indeed, suffer from erectile dysfunction, he asks you for a prescription for Viagra in order to “enhance” his performance. With a diagnosis and prescription, he can have your services and the medication covered by his health insurance.

Case Two: A fellow resident with whom you often work and are friendly pulls you aside one day and says that he needs to speak with you. The two of you meet later in the day over coffee and he tells you that a patient he has been treating in clinic has died suddenly of a heart attack. Your colleague worries aloud that he believes he may have caused the death of this patient through a medication error, i.e., by prescribing a medication for which the patient had contraindications. He suggests, however, that the error is likely to go undiscovered. What should you do?

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Questions for Discussion, Analysis and Reflection

With case one, what are the “best interests” of this “patient”? What are the potential “benefits” and the potential “harms” of complying with his request?

With case two, assume that this exchange occurred in your institutional setting. What are the implicit as well as explicit “pressures” in your environment with respect to a dilemma like this? Is the environment one in which disclosure is encouraged and modeled by superiors? Or is the environment an unforgiving one that makes disclosures of this sort “too risky”? If you are the colleague to whom this confession is made, what are your obligations to your confessing colleague? What are your obligations to the dead patient? What are your obligations to the institution?

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Additional Resources


A good general resource on the topic of truth telling in medicine can be found at http://sprojects.mmi.mcgill.ca/ethics/X/topics/truthtelling/truthtelling_main.htm

A succinct, well written overview of truth telling in medicine is offered by James Drane at http://www.uchile.cl/bioetica/doc/honesty.htm

Another useful overview is found at http://2006.confex.com/uicc/uicc/techprogram/P10511.HTM

The topic of hope and truth telling in the context of serious illness is explored at http://www.eperc.mcw.edu/fastFact/ff_021.htm

Truth telling in the context of terminal cancer is analyzed at http://www2.unescobkk.org/eubios/BetCD/Bet11.doc

A sophisticated academic exploration of truth telling is found at http://www.blackwell-synergy.com/doi/pdf/10.1111/j.1749-6632.2000.tb05161.x



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