Are Your Doctors Telling You The Truth? – Let’s Talk About Disclosure of Medical Errors
by Adlina Ahmad Zaharim ~ 22 April 2024
We’ve all been patients. We’ve all had to undergo some form of a medical procedure in our lives, irrespective of how major or minor. But what happens when you suspect that something has gone wrong, yet your doctor isn’t the most forthcoming with you?
Encountering medical errors can be a challenging experience for both patients and healthcare professionals. The question of whether doctors should disclose these errors to their patients is a multifaceted one. Let's delve into these aspects while examining real-life cases that shed light on the intricacies of disclosure.
Legal Obligations
In Malaysia, the legal framework regarding the disclosure of medical errors is not clearly defined. However, globally, many countries have implemented 'apology laws' to encourage open communication while providing legal protection to healthcare providers. While Malaysian initiatives prioritize patient safety and effective grievance handling, the absence of explicit disclosure laws leaves room for interpretation.
Real-Life Cases: Legal Ramifications of Disclosure
In this case, the Plaintiff sought medical intervention from the Defendant, an obstetrician, and gynaecologist, to terminate her pregnancy and insert an intrauterine contraceptive device. However, a procedural mishap led to a life-threatening situation, requiring the removal of the plaintiff's womb and right ovary. The Plaintiff sued the Defendant, alleging negligence for failing to advise her of the procedure's risks. The Plaintiff endured physical and emotional trauma, prompting legal action against the doctor. Interestingly, the Defendant admitted to the error and personally apologized to the Plaintiff, using the term "kesilapan", confirming the mistake. This admission of fault became a focal point in the legal proceedings as the Plaintiff included the same in her sworn testimony. Despite the apology, the court deemed the Defendant liable, citing the admission of negligence as a result of the apology. |
The factual matrix follows a 38-year-old mother of four who had sought treatment for the removal of a cervical polyp. However, she was shocked to discover during a follow-up consultation that her uterus had been removed without her consent by the attending doctor at Tung Shin Hospital. The Plaintiff alleged that the doctor breached his duty of care by performing an unnecessary procedure and causing her to lose the opportunity to have another child. In his defense, the doctor argued that the uterine removal was necessary to treat the plaintiff's medical condition and that she had consented to it by signing a form. The High Court ruled in favour of the Plaintiff, highlighting the doctor's verbal apology as evidence of mistake. Emphasizing the doctor's duty to ensure full patient understanding, the court deemed the apology an admission of negligence. |
These cases serve as a cautionary tale, highlighting how apologies and disclosure, while seemingly empathetic, can inadvertently incriminate medical professionals. Such outcomes may deter future doctors from transparent disclosure practices, underscoring the complications within medical malpractice litigation.
In juxtaposition, countries that have enacted apology laws often yield significantly different court rulings when apologies are made.
In this Ohio case, Michelle Stewart's tragic suicide attempt led to legal action against Mercy Hospital and Dr. Vivian. Despite efforts to prevent her suicide, Michelle was found unconscious the next day and eventually passed away. Stewart alleged medical malpractice, claiming Dr. Vivian failed to meet the standard of care. During the trial, Dr. Vivian's statements, which included expressions of apology, became a focal point. However, the court ruled these statements as "ineffective attempts at commiseration," deeming them inadmissible under the apology statute. The court's analysis of "apology" highlighted the complexity of such statements, acknowledging their dual nature as expressions of remorse and admissions of fault. Ultimately, the court concluded that Michelle's statements did not qualify as admissions of fault protected under medical apology laws. |
From the above, it is clear that court rulings vary significantly between countries with apology laws and those without.
Ethical Considerations
Ethically, Malaysian doctors are guided by the principles outlined in the Good Medical Practice 2019 (“GMP 2019”) and the Code of Professional Conduct 2019 (“CPC 2019”), both issued by the Malaysian Medical Council (MMC), which emphasizes honesty and empathy towards patients affected by errors:-
Para 11.3 of the GMP 2019If a patient has suffered serious harm for whatever reason, the doctor should act immediately to put matters right. The patient must receive a proper explanation of the short- and long-term effects. |
Para 2.2.6 of the CPC 2019 – Medical Errors and Incident ReportingA medical practitioner who commits errors in the course of management of his patient must avoid concealing them from the patient or those in authority and must record such events in the patient records/notes. It is unethical for the practitioner not to be truthful and honest in such an event. |
In contrast, countries like the US and Canada have explicit guidelines on error disclosure in medical association codes, emphasizing patients' rights to truth and physicians' duty to disclose.
The Purpose of Disclosure
When something goes wrong during treatment, being honest about it has three main goals: holding healthcare providers accountable, stopping the same error from happening again, and improving overall patient care. Sharing what went wrong can help by providing explanations, promising to fix things, and showing empathy. Studies show that patients respond more positively to doctors who apologize and take responsibility for mistakes, reducing the likelihood of litigation.
The Ripple Effect of Apologies
Saying sorry can make a big difference in how patients react to medical mistakes. People are more likely to forgive doctors who admit their errors and show they're sorry, as statistics show:-
- In Australia, 97% of medical complaints cases that resulted in an explanation or apology did not proceed to litigation;
- 'Apology programs' in hospitals in Pennsylvania and Tennessee showed significant reductions in malpractice payments with effective apologies and disclosure of mistakes; and
- A US study on malpractice claims related to perinatal injury found that 20% of family members sought information, and 24% pursued legal action due to perceived cover-ups or dishonesty by physicians.
Conclusion
Ultimately, transparency in healthcare remains essential for patient safety and quality care. And if you are a patient concerned about the extent of your doctor’s honesty with you, it is important to remember that you are ethically entitled to nothing short of transparency and disclosure.