Objective: To assess the attitudes of health care professionals engaged in open disclosure (OD) to the legal risks and protections that surround this activity.
Design and participants: National cross-sectional survey of 51 experienced OD practitioners conducted in mid 2009.
Main outcome measures: Perceived barriers to OD; awareness of and attitudes towards medicolegal protections; recommendations for reform.
Results: The vast majority of participants rated fears about the medicolegal risks (45/51) and inadequate education and training in OD skills (43/51) as major or moderate barriers to OD. A majority (30/51) of participants viewed qualified privilege laws as having limited or no effect on health professionals’ willingness to conduct OD, whereas opinion was divided about the effect of apology laws (state laws protecting expressions of regret from subsequent use in legal proceedings). In four states and territories (Western Australia, South Australia, Tasmania and the Northern Territory), a majority of participants were unaware that their own jurisdiction had apology laws that applied to OD. The most frequent recommendations for legal reform to improve OD were strengthening existing protections (23), improving education and awareness of applicable laws (11), fundamental reform of the medical negligence system (8), and better alignment of the activities of certain legal actors (eg, coroners) with OD practice (6).
Conclusions: Concerns about both the medicolegal implications of OD and the skills needed to conduct it effectively are prevalent among health professionals at the leading edge of the OD movement in Australia. The ability of current laws to protect against use of this information in legal proceedings is perceived as inadequate.
- 1. Gallagher T, Studdert DM, Levinson W. Disclosing harmful medical errors to patients: recent developments and future directions. N Engl J Med 2007; 356: 2713-2719.
- 2. Mazor KM, Simon SR, Yood RA, et al. Health plan members’ views about disclosure of medical errors. Ann Intern Med 2004; 140: 409-418.
- 3. Blendon RJ, DesRoches CM, Brodie M, et al. Views of practicing physicians and the public on medical errors. N Engl J Med 2002; 347: 1933-1940.
- 4. Gallagher TH, Waterman AD, Ebers AG, et al. Patients’ and physicians’ attitudes regarding the disclosure of medical errors. JAMA 2003; 289: 1001-1007.
- 5. Studdert DM. Disclosure of medical injury. In: Healy J, Dugdale P, editors. Patient safety first: responsive regulation in health care. Sydney: Allen and Unwin, 2009.
- 6. Australian Council for Safety and Quality in Health Care. Open Disclosure Standard: a national standard for open communication in public and private hospitals, following an adverse event in health care. Sydney: ACSQHC, 2003. http://www.safetyandquality.gov.au/internet/safety/publishing.nsf/Content/PriorityProgram-02 (accessed May 2010).
- 7. Iedema R, Mallock NA, Sorenson RJ, et al. The National Open Disclosure Pilot: evaluation of a policy implementation initiative. Med J Aust 2008; 188: 397-400. <MJA full text>
- 8. Lamb RM, Studdert DM, Bohmer RMJ, et al. Hospital disclosure practices: results of a national survey. Health Aff (Millwood) 2003; 22: 73-83.
- 9. Gibson R, Singh JP. Wall of silence: the untold story of the medical mistakes that kill and injure millions of Americans. Washington, DC: Lifeline Press, 2003.
- 10. Constas MA. Qualitative analysis as a public event: the documentation of category development procedures. Am Educ Res J 1992; 29: 253-266.
- 11. Studdert DM, Richardson MW. Legal aspects of open disclosure: a review of Australian law. Med J Aust 2010; 193: 273-276. <MJA full text>
- 12. Australian Commission on Safety and Quality in Health Care. Windows into safety and quality in health care 2008. Sydney: ACSQHC, 2008. http://www.health.gov.au/internet/safety/publishing.nsf/Content/E060D889E298D039CA 2574EF00721BD8/$File/ACSQHC_National% 20Report.pdf (accessed Oct 2009).
- 13. Iedema R, Mallock N, Sorensen R, et al. Evaluation of the pilot of the National Open Disclosure Standard. Final report. Sydney: University of Technology Sydney, 2007. http://www.health.gov.au/internet/safety/publishing.nsf/Content/751691A67FE79CFECA2577 6000155EE9/$File/EvaluationOf-Pilot-NOD-Std.PDF (accessed Oct 2009).
- 14. New South Wales Health. Open disclosure: training and education. http://www.health.nsw. gov.au/quality/opendisc/training.asp (accessed Oct 2009).
- 15. Iedema R, Jorm C, Wakefield J, et al. Practising open disclosure: clinical incident communication and systems improvement. Sociol Health Illn 2009; 31: 262-277.
- 16. Studdert DM, Brennan TA. No-fault compensation for medical injuries: the prospect for error prevention. JAMA 2001; 286: 217-223.
- 17. Mello MM, Studdert DM, Kachalia A, Brennan TA. Health courts and accountability for patient safety. Milbank Q 2006; 84: 459-482.
- 18. Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med 2010; 153: 213-221.
- 19. Ferlie EB, Shortell SM. Improving the quality of health care in the United Kingdom and the United States: a framework for change. Milbank Q 2001; 79: 281-315.
- 20. Gallagher TH, Waterman AD, Garbutt JM, et al. US and Canadian physicians’ attitudes and experiences regarding disclosing errors to patients. Arch Intern Med 2006; 166: 1605-1611.
- 21. Berlinger N. After harm: medical error and the ethics of forgiveness. Baltimore: Johns Hopkins University Press, 1995.
Publication of your online response is subject to the Medical Journal of Australia's editorial discretion. You will be notified by email within five working days should your response be accepted.