October / December 2004
Ethical Considerations in Policy Development
The Hastings Center has convened several major interdisciplinary research projects on patient safety and quality improvement (QI), including Promoting Patient Safety: An Ethical Basis for Policy Deliberation (2000-03), which explored the ethical issues at stake in the development of patient safety policies and practices; and The Ethics of Improving Health Care Quality and Safety (2002- ), which is examining the ethical dimensions of QI, including the relationship between QI activities that may involve patients and the research protections and other safeguards intended to protect patients from harm.
This presentation focused on ethical issues in the aftermath of medical injury: How can patient safety policies, including the practices that follow from these policies and the educational resources that may help to integrate and maintain these practices within institutions, encompass the safety of individuals who have already been affected by medical mistakes and other adverse events? And how can patient safety policies take into account the values, beliefs, norms, and expectations of patients, families, clinicians, and others concerning appropriate and inappropriate words and actions in the aftermath of unintended harm? The presentation explored these issues with reference to three observations:
- You’ve got to teach people how to do what they think is natural.
- Apologies are essential, but they aren’t “magic.”
- If you want people to remember something, tell them a story.
You’ve got to teach people how to do what they think is natural.
In their influential 1999 article describing the “Lexington Model” of disclosure, authors Steve S. Kraman and Ginny Hamm reported that hospital staff were happy to comply with this policy of “extreme honesty” because they believed it was “the right thing to do” for their patients (Kraman & Hamm, 1999, p. 964). Administrators at Catholic Healthcare West observed a similar response when they presented the system’s disclosure-oriented “Philosophy of Mistake Management” to staff; one employee said that “being honest and apologizing seem naturally to be the right thing to do; lying about a mistake is learned (Bayley, 2001, p. 154).” Learned behaviors such as telling the truth, saying you’re sorry, and treating people with compassion and fairness after they’ve been hurt seem “natural” because they are consistent with the values taught in earliest childhood, values that are frequently reinforced by religion and culture (Berlinger & Wu). So it is not surprising when hospital staff say they are more comfortable with truth telling, apology, and fair compensation than they are with policies and practices that do not encourage these “natural” words and actions.
However, pointing to an institution’s disclosure policy is not sufficient to help clinicians and administrators learn how to disclose incidents that result in injuries, in ways that are clear and respectful to patients and families. Disclosure is a conversation, not a monologue. How can patient safety professionals promote productive conversations that involve speaking, listening, observing, and responding to verbal and nonverbal forms of communication? There are now many training tools and resources available to assist with this challenge, but above all, it is essential to practice disclosure conversations. Practicing and receiving feedback on unscripted disclosure conversations, in which those disclosing information must think on their feet and deal with unexpected responses, are also opportunities to correct bad habits, such as saying “complication” or “problem” instead of “error” or “injury,” or using technical language that is difficult to understand and discourages questions. Correcting these bad habits offers an ethical lesson: The obligation to disclose is met only when the patient and family understand what has happened.
Institutional efforts to improve the handling of medical injuries must also reflect the fact that when a hospital adopts a “blame-free” approach, clinicians don’t stop blaming themselves. The emotional fallout from injuring a patient, lack of appropriate support for clinicians, and clinicians’ confusion over whether they ought to tell patients about their own feelings can be barriers to disclosure (Gallagher, Waterman, Ebers, Fraser & Levinson, 2003). Is it inappropriate to tell an injured patient how terrible you feel? Is it more “professional” not to show emotion when disclosing mistakes? Or does the physician who does not show emotion come across as uncaring? An interactive approach to disclosure training, while not a substitute for counseling and other support that clinicians may need, can acknowledge the emotional dimensions of disclosure and suggest appropriate means of conveying care and respect for patients. Professional chaplains, who frequently provide emotional support to hospital staff after critical incidents and are familiar with “breaking bad news” conversations in the context of intensive care and end-of-life care, may be able to provide additional insight into ways to provide emotional support to clinicians after medical injuries and in preparation for disclosure conversations.
Apologies are essential, but they aren’t “magic.”
If apologizing for one’s mistakes is the right, or “natural,” thing to do, not apologizing is the wrong, or unnatural thing to do, and it makes people angry. The disclosure of a medical error should include an apology for that error (Cohen, 2002, p. 843). But not all “I’m sorry” statements are alike: To say “I’m sorry your father is dead” is not the same as saying “I’m sorry I made a mistake that killed your father.” The first expresses sympathy; the second is an apology, because it acknowledges responsibility. Patients are likely to recognize stilted pseudo-apologies — I’m sorry this terrible thing happened to you — as attempts to dodge liability, rather than as sincere expressions of regret and responsibility (Taft, 2000, pp. 1152-3). There are many professional and institutional myths on the wisdom and perils of apologizing, and many differences state-to-state in the legal status of apologies now that a sizable number of states have enacted or are considering so-called “I’m sorry” laws protecting certain types of statements from being used as evidence of liability. It is prudent to talk with colleagues at other institutions, or to post a query on a patient safety listserv, to find out how others are handling training around this aspect of disclosure, and what their actual experiences in offering sincere apologies as part of disclosure conversations have been.
Both no-fault and mediation models of disclosing mistakes and addressing compensation for injuries can accommodate apologies, and commentators who write about these alternatives to litigation, and about apology in general, may talk about the “magic” of apology in resolving disputes. However, apologies aren’t magic. While the absence of an apology may contribute to the anger that triggers lawsuits, an apology does not make the medical and financial ramifications of an injury magically go away. Also, lawsuits can be triggered by the need for compensation, regardless of whether anyone has apologized. Apology and compensation are two different aspects of the institutional response to medical injury. Although they are different, they can be addressed in the same disclosure conversation: accepting responsibility for the injury, through the words of apology, is made tangible by providing fair compensation for the physical and financial ramifications of the injury.
If you want people to remember something, tell them a story.
Human beings pay attention to stories, even if they’re resisting the moral of the story. So if you want people to remember something, tell them a story (C. Bosk, personal communication, April 2, 2004). Autobiographical stories about medical injuries, written by clinicians, patients, or family members, can be a resource in hospital-based patient safety training, in medical and nursing education, and in efforts to involve patients and families in patient safety and QI efforts. Besides being interesting to read and easy to remember, stories give readers vivid insight into the personal and ethical issues at stake in the immediate and long-term aftermath of medical injuries. A physician who avoids disclosure because he can’t imagine facing an “angry” family may learn, from reading stories written by family members, that anger is more likely to be triggered by silence than by prompt disclosure. Reading and discussing physicians’ stories about their immediate and long-term emotional reactions to their mistakes may help other physicians to acknowledge and address their own feelings about making — and disclosing — mistakes. Physicians’ stories that describe the just and compassionate treatment of injured patients and their families may also help other patients and families to repair their trust in healthcare providers.
Stories about medical mistakes often begin with the question: What just happened? Other questions that drive the action in these stories include: Why did it happen? Why won’t anyone tell me what happened? Who is responsible for what happened? What am I going to do as the result of what happened, or what I suspect must have happened? In effect, they are detective stories. This familiar storytelling structure, in addition to compelling content, is part of what makes these stories so memorable, and therefore so useful as training resources when discussing complex topics such as disclosure, apology, compensation, systems improvement, and other ramifications of adverse events. It should therefore come as no surprise that there is even a series of detective novels in which the heroine, the director of nursing at a community hospital, uses her Six Sigma Black Belt training to develop error-prevention programs, institute quality improvement measures, and solve a few mysterious deaths (Barry, 2004a; Barry, 2004b).
Barry, R. (2004a). Nan: A Six Sigma mystery. Milwaukee: ASQ Quality Press.
Barry, R. (2004b). Nan’s arsonist: A Six Sigma mystery. Milwaukee: ASQ Quality Press.
Kraman, S. S., & Hamm, G. (1999). Risk management: Extreme honesty may be the best policy. Annals of Internal Medicine 131, 963-967.
Bayley, C. (2001). Turning the Titanic: Changing the way we handle mistakes. HEC Forum 13, 148-159.
Berlinger, N. & Wu, A. W. (Forthcoming). Subtracting insult from injury: addressing cultural expectations in the disclosure of medical error. Journal of Medical Ethics.
Gallagher, T. H., Waterman, A. D., Ebers, A. G., Fraser, V. J., & Levinson, W. (2003). Patients’ and physicians’ attitudes regarding the disclosure of medical errors. Journal of the American Medical Association 289, 1001-1007.
Cohen, J. R. (2002). Legislating apology: The pros and cons. University of Cincinnati Law Review 70, 819-872
Taft, L. (2000). Apology subverted: The commodification of apology. Yale Law Journal 109, 1135-1160.
Nancy Berlinger is deputy director and research associate at The Hastings Center, an independent, non-profit, non-partisan bioethics research institute located in Garrison, New York. Berlinger’s current research interests include the fair compensation of medical injuries, the emotional ramifications of medical error upon clinicians, the ethics of quality improvement, and the use of narrative as a teaching tool in improving the care of injured patients and their families. She recently completed a book, After Harm: Medical Error and the Ethics of Forgiveness, for Johns Hopkins University Press. Berlinger received a Ph.D. in English Literature from the University of Glasgow and an M.Div. in Christian Ethics from Union Theological Seminary.
- Proceedings from the Quality Colloquium at Harvard University:
- • Introduction
- • How Online Patient Networks Can Enhance Quality and Reduce Errors
- • P4P Contracting: Bold Leaps or Baby Steps?