Knowing what to say and how to say it is crucial
Poor communication between the physician and the patient is a root cause leading to filing a medical liability lawsuit. Recently, Thomas Fleeter, MD, and Robert Slater, MD, of the AAOS Medical Liability Committee, spoke with Lee McMullin, CPHRM, about how to talk to patients after an adverse event. Mr. McMullin is senior risk management and patient safety specialist for Cooperative of American Physicians, a physician-owned and governed, California-based medical malpractice liability cooperative that provides medical professional liability protection and risk management services.
Dr. Slater: Let’s start by talking about how the legal profession defines “adverse outcomes.” Is that different than how physicians would document or discuss them in our communications with each other and/or in reporting?
Mr. McMullin: Certainly, the viewpoints pertaining to that particular concept are based on one’s perspective. With regard to the legal community, it depends on whether you are a plaintiff’s attorney or a defense attorney. An adverse event could be something that’s perceived or it could be something real. For example, a medical assistant administers a pediatric vaccine out of cycle. That’s clearly an error, but it causes no harm. That’s quite different than giving the wrong medication that actually causes an asystolic event.
The way a healthcare professional looks at an “adverse event” differs from the way the plaintiff’s attorney views it. The physician might see a well-known, well-documented complication of care whereas the attorney might say, “If it’s not what you expected, you must have done something wrong.”
Dr. Slater: Occasionally I am asked to review a potential medical legal case. As an orthopaedic surgeon familiar with that surgery, I might view a complication as an unfortunate outcome, but not below the standard of care. The general public, however, might view the same outcome as negligence and contact an attorney. Do you see that as well?
Mr. McMullin: You’re spot-on there. The healthcare community uses the standard of care as a judgment point to determine whether a provider acted or failed to act with respect to the care and treatment of an individual patient. Whereas the patient’s viewpoint is that “If it’s not what I expected, you’d best have a good explanation for why it happened, because I’m automatically going to be thinking you did me wrong.” The plaintiff’s attorney shares that viewpoint.
Dr. Fleeter: Something could happen that doesn’t affect the long-term outcome, such as a deep vein thrombosis (DVT) after a hip replacement. It slows down recovery, but eventually the patient will recover. I would see that as not a very serious adverse event. But if a surgeon shatters the femur intraoperatively, while impacting the prosthesis, that’s a very different situation. You would obviously look at those in a different light and have different discussions and communications with the patient. Is that fair to say?
Mr. McMullin: Yes, that’s why claims adjusters try to assign a severity level to what has transpired. Clearly, a DVT may occur, but it’s a known complication associated with static, nonmoving people. It could be due to an underlying blood disorder or other cause, even sitting at the desk or on an airplane.
However, a shattered femur during installation of a femoral component—or an acetabular shell that is seated improperly—has much longer-term effects. These are complications associated with a specific procedure, as opposed to a foreign body being retained, such as a sponge within the surgical site.
From the patient’s perspective, neither of these situations is routine, whereas the surgeon understands that a complication will occur if he or she performs enough of these surgeries. And surgeons have a tendency to not necessarily look at the event from the patient’s perspective.
Dr. Slater: Once we, as surgeons, realize that a problem exists, how and when should we disclose that? Should we confess that we or others on our team made a mistake?
Mr. McMullin: I don’t like the term “confess” any more than I like the “second victim” concept for healthcare providers who are emotionally affected by an event. Let’s call it “disclosure.” So the real question is at what point in the process, after discovery of the event, does the surgeon make that disclosure to the patient or, if the patient’s not conscious, to the significant other or the surrogate decision-maker and family members?
In that sense, it’s a waltz, meaning that the surgeon needs to be articulate and sensitive to what is being said or left unsaid. The wrong comment can fix and polarize family members and patients. For example, some providers have an initial emotional reaction to rush to the bedside and say, “This is all my fault and I’m really sorry about it” or “It was my mistake” when what occurred was a known complication of care, covered and disclosed in the informed consent documents and in the discussions between the provider and the patient, and the causation analysis doesn’t show any deviations from standard of practice.
But the surgeon who runs to the bedside and makes that initial disclosure sounds like he or she did the patient wrong. That can never be erased. That will be remembered and repeated in every subsequent interaction.
So take time to circle yourself with the people who have the skill sets needed. Folks such as myself perhaps, who are involved and skilled at coaching physicians about what to do and not to do, what to write and not to write. Reach out to the facility risk manager, because most of these complications occur in the acute care tertiary setting.
That bridges into the question of what do you disclose? Share what about the event is known—a nerve issue or a fracture. If it was recognized it at the time and fixed, the outline of the disclosure discussion is there. If the incident is something like a patient crashing in the postacute care unit or in the ICU, and tests aren’t showing exactly what’s happening, the surgeon doesn’t want to say “I don’t know.” Instead, we want to share that an investigation—tests, studies, and/or additional consultations from other specialists—is being conducted to determine what is happening.
Dr. Fleeter: It seems to me that some scenarios have a time pressure to them, and others don’t. For instance, an intraoperative fracture occurred during a hip replacement and the surgeon has to talk to the family within the next 10 or 15 minutes and can’t reach anyone from the risk management department. Should he or she be circumspect and say, “It appears this happened; when I have more details I’ll get back to you.”? That’s a different situation than when a wound becomes infected and the surgeon has time before the discussion with the family occurs.
Mr. McMullin: Some situations are more time-sensitive than others. What this comes down to is the skill set of the provider involved. This isn’t taught in medical school; providers have to learn to interact with patients and families in all kinds of situations.
With that skill set, a surgeon can say, “This is a known complication. It happened, and it’s been repaired. It’s going to delay recovery. There may or may not be nerve involvement.” There is no generic, one-size-fits-all approach. It’s all clinically directed.
However, if this is the first time, there’s value in connecting with someone to make sure you don’t commit an act of “oral podiatry” (inserting one’s foot into one’s own mouth) in delivering the message. Part of the process is to anticipate what questions the patient and family members will have and be prepared to respond to them.
The disclosure triad consists of what occurred, why it happened, and if it’s preventable, what is being done to keep it from happening to others. The first discussion is basically, “This is what happened.”
The second part of the triad—how it occurred—is not always known. If the causation pathway is clearly known and not subject to any type of deviation, the surgeon could explain that: “These things happened in the process of inserting the shaft in the bone due to…” whatever it happens to be in the analysis of how it occurred.
On the other hand, some things aren’t known right away. In these cases, the meeting with the family goes like this: “This is what’s going on. This is the behavior we’re seeing right now. This is what we think it is. We’re doing studies to analyze what this is, because we’re not absolutely certain. As we gather more information, we will bring that information to you and keep you informed.”
Don’t guess. Give the family what you know. Don’t speculate on what you don’t know.
Dr. Slater: These days, many medical records are in electronic format. How should we best document the adverse outcome in our notes and charts? Are there certain things that we should NOT put in?
Mr. McMullin: Whether the documentation is electronic or paper really doesn’t change the contents. From a surgical standpoint—as opposed to an event that happened on the nursing floor—an objective, documented note should capture the elements of what occurred without any type of subjective comment.
For more of this conversation, listen to the June AAOS Now podcast, available at www.aaosnow.org
- Healthcare professionals and legal professionals view “adverse events” differently; this may cause misunderstandings and lead to lawsuits.
- The disclosure triad for talking to patients after an adverse event covers what happened, why it happened, and, if the event was preventable, what is being done to keep it from happening to others.
Editor’s note: This is the first of a two-part interview on how to talk with patients after an adverse event.