Handling Hospital Errors: Is Disclosure the Best Defense?

• Malpractice
• Medical errors
• Jurisprudence
• Risk management
• Hospital-patient relations

Why do patients sue? Bad outcomes and errors in care are obvious factors, but some of the available evidence implicates deficient communication. One attorney explained it to me this way:

In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel.

Reviewing his experience as a malpractice defense attorney, Green (1) estimated that although less than 20% of medical malpractice cases involve negligence, almost all involve a breakdown in the physician-patient relationship. Patients often form unrealistic expectations because their physicians fail to discuss treatment alternatives. In a review of closed claims in Florida, Hickson and colleagues (2) found that almost 50% of perinatal injury lawsuits were motivated by suspicion of a cover-up or by the desire for revenge. Levinson and coworkers (3) found that primary care physicians were less likely to be sued if they told patients what to expect, encouraged them to talk, used humor, and spent more time with them. An estimated 75% of all malpractice lawsuits involve inpatient or emergency department care; in these care settings, the physician and the patient usually do not have an established relationship (4).

Malpractice litigation aims to gain compensation for patients injured by negligent care and to discourage the practice of such care. How well does the current system achieve …