Letters
Ethics
Volume 194 - Issue 1

Legal aspects of open disclosure II: attitudes of health professionals — findings from a national survey

Authors:  Julian L Rait and Elizabeth H Van Ekert

Med J Aust 2011; 194 (1): 48. || doi: 10.5694/j.1326-5377.2011.tb04148.x
Published online: 3 January 2011
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To the Editor: It is regrettable that research published by Studdert and colleagues suggests that barriers remain to the open disclosure of medical error in Australia.1 Although all states have enacted legislation to protect defendants who apologise to plaintiffs, such protection is variable and inconsistent across Australia.2 Most significantly, the definition of what constitutes an apology varies greatly from jurisdiction to jurisdiction, as do the various protections afforded to the apology. Unfortunately, this only serves to complicate what should be an open and candid discussion of the circumstances surrounding a medical error.

However, the fear of legal action is not the only barrier preventing doctors from disclosing harm-causing medical errors to patients and their families. Acknowledging that an error has caused serious harm to a patient is extremely distressing to doctors, most of whom enter the medical profession with the aim of relieving the suffering of others. When their actions inadvertently result in harm to patients, the impact can be devastating.3

The emotional reaction to a medical error is usually one of intense anxiety and concern for the patient’s welfare, then deep reflection on how the error occurred and how the outcome might be mitigated. This may be followed closely by the doctor’s anxiety about his or her own welfare and the professional and legal consequences of the mistake, including the potential loss of reputation or even job. Consequently, doctors are sometimes tempted to rationalise away their role in causing harm or minimise their responsibility for disclosing mistakes and failures.4,5

However, an apology is a powerful tool to facilitate healing of the emotional scars of a patient’s injury. Furthermore, from the perspective of a medical indemnity insurer, while open and transparent disclosure of medical error would seem an improbable risk-management strategy, there is no doubt that a truthful and compassionate explanation of some errors that cause harm may actually reduce the risk of litigation.6

So, as Studdert and colleagues conclude, doctors should be and are supported and encouraged to enter into these difficult discussions by their insurer, without a presupposed fear that the actual process of open disclosure might contribute to the risk of litigation.

One hopes that stakeholders will continue to work towards removing barriers to this process, with a greater focus on clinical risk management and less on recrimination and blame within the Australian health care system in years to come.

Authors

  • Julian L Rait1
  • Elizabeth H Van Ekert2
  • 1. MDA National, Melbourne, VIC.
  • 2. MDA National, Sydney, NSW.

Correspondence: jrait@mdanational.com.au

References

View this article on Wiley Online Library