Should healthcare professionals tell their patients that they made an error – even when it has minor consequences? Or would this lead to more persons involved in a lawsuit? These questions are central to this question. This chapter will focus on the developments regarding this subject in the US.

Reporting Systems

Next to the patient safety movement, the IOM report also set in motion a series of events that led directly to the disclosure issue (to tell or not to tell). The publication led to an increase in malpractice premiums (health insurance) and lead to more state mandatory reporting systems. These systems serve three purposes:

• They protect patients with the knowledge that any serious errors must be reported and will be investigated.
• They give healthcare organizations an inventive to have a systematic approach to patient safety. The system approach brings out mistakes into the open in order to fix the organizational flaws and avoid future lapses. The tort system blames individuals for their errors and uses punishments to avoid future lapses.
• Mandatory reporting systems require all healthcare facilities to make some level of investment in patient safety.

Reporting Obstacles

As mentioned before, errors in healthcare are not accepted nor expected. They are stigmatized, marginalized and equated with medical incompetence. It is only logic that the new reporting systems made health professionals hesitant, because this could lead to more malpractice suits. However, research shows that there is no causal connection between mandatory reporting and more malpractice suits.

Whereas disclosing (reporting mistakes can happen) has been around a little longer, the practice of offering an apology is new. The Veterans Affairs Medical Centre (VAMC) gets the credit for getting the ball rolling regarding making apologies. In 1987 they adopted the ‘disclose-apologize-compensate’ approach, which is in sharp contrast with the ‘deny and defend’ approach. 12 years later it was confirmed that this new approach was the way to go in the medical profession. Research concluded that compensating patients and meeting their interest was relatively inexpensive in comparison with a malpractice lawsuit. Nancy Lamo suggests that the IOM and the VAMC reports brought about a cultural change in terms of transparency, disclosure and apology in the medical profession.

In 2005 Barack Obama and Hilary Clinton proposed a bill to establish the National Medical Error Disclosure and Compensation Program that built further on the Patient Safety and Quality Improvement Act that in 2006 was still pending in the senate.

How an apology is framed and delivered is important. Albert Wu (Johns Hopkins) pointed out that is not so much what is said but what the recipient hears that matters. Lee Taft argues that for an apology to be authentic is must contain:

• An acknowledgment that a rule or protocol has been violated
• An expression of genuine remorse and regret for any harm caused
• An explicit offer of restitution
• A promise of reform

The University of Michigan Health System (UMHS) Program: A Before and After Study

The study compares liability claims before and after the implementation of the UMHS disclose-with-offer program (disclosing and compensating). The results show fewer lawsuits, faster resolution and lower costs. Richard Boothman said that honesty is the basis of the three principles that are embodies in the UMHS study. First, when inappropriate medical care costs any harm, the provider of the care owes the patient a quick compensation. Second, when there was no patient injury the caregivers should get a thoughtful and vigorous defence. Third, the underlying aspect is the need to learn from patients’ experiences to improve the overall quality of care.

Criticism on this study

Of course, not everyone agrees. David Studdert, Dr. Atul Gawanda and Dr. T. Brennan are three very influential people in the medical world that co-wrote a paper that has a contrary view on the IOM report. They wrote that the chance that disclosure would decrease either the frequency or cost of malpractice litigation was remote. They even found it to be likely that the costs and litigation volume was to rise. The conclusions were based on the following observations: a vast majority of patients even suffering form a result of a medical error never sues, one of the reasons for this is that most people don’t know that they are a victim of a medical error, so the authors conclude that if these people are made aware of the fact that they were victims the number of claims will be rising.