Truth Telling, Nondisclosure, and Disclosing Medical Error:
Bad Outcomes vs. Bad Work
Three angles:
Ø Telling the truth to our patients about their condition.
Ø Informing our patients when we commit medical errors.
Ø The distinction between bad outcomes and bad work. Also, the problem of what do to when we discover bad work on the part of a dental colleague.
Telling the Truth to Patients
Consider the case from last time when the dentist discovered the lesion on the patient’s tongue. He informed the patient that this was generally symptomatic of an autoimmune deficiency. Should he have gone that far? The patient immediately inferred that the dentist was talking about AIDS. The dentist went so far as to tell him that it was LIKELY to be HIV related. We didn’t question that last time, but I want to now. Should he have told the truth to that degree?
The traditional argument regarding disclosure:
Ø Departures from the general principle of truth telling are justified when information disclosure itself carries serious risks for patients.
Ø Truth telling is limited by the more ultimate principle of nonmaleficence. If disclosing the truth will ultimately harm the patient, then the practitioner is justified in withholding that truth.
Ø It is held that when the risk from nondisclosure is small, and the risk from disclosure is large, then we should withhold.
Ø Those who hold this position will distinguish between our duties not to lie or deceive (which is one thing) with the duty to disclose (which is another).
But, most will argue today that there is a strong duty of veracity in medicine due to the more recent emphasis on autonomy, of respect for persons. Can we reconcile our duty to veracity with justified nondisclosure? Not an easy question.
Why should doctors tell patients the truth?
Ø Respect for persons demands it. Kantian considerations.
Ø It allows for proper decision making. Utility considerations.
Ø It’s a kindness to be told the truth. Virtue considerations.
Clearly when we are incapacitated (no longer autonomous) then the truth isn’t necessary—we can’t act! We might call this “necessary paternalism.” Among autonomous people, there could be times that other principles will outweigh the prima facie principle of veracity--“temporary trump cards.”
The goal of all healthcare: to receive/provide help for an illness/condition such that no further harm comes to the patient, especially in that patient’s vulnerable state. The vulnerable person, who has come to your for help, should be assisted back to a state of human equality, if possible, free of that dependency. Dependency compromises autonomy. Thus:
Ø The goal of the relation between the healthcare giver and the patient is essentially to restore the patient’s autonomy. Respect for the patient’s right to truth is measured against this goal. Tell if it helps, withhold if it hinders.
Ø Interventionist healthcare relationships are generally temporary and require a greater degree of veracity than long term relationships. Compassion is more likely to grow out of the long term relation, and compassion may require temporary withholding of information.
Ø The goal of healthcare is the treatment of an illness or condition. An illness is broader than a disease, as it can include the whole person. Helping someone through an illness is a greater task than simply treating a disease or condition. Again, that may require the withholding of certain information.
Telling the Truth to Patients with Cancer: What is the Truth?
Antonella Surbone
Traditionally, beneficence ruled. Doctors made what they judged to be the best medical choices in their patients’ interests and would withhold the truth at their discretion. As we have seen, that model is outdated. This model, she argues, is misleading—it assumes a symmetrical relationship, but the doctor-patient relationship is a “dynamic asymmetrical relation of help involving individuals with unequal knowledge and power. The patient is vulnerable, and this vulnerability enhances their dependence on other people.”
An illness is not justly described by merely transcribing the facts. There are subjective, relational aspects (e.g. interactions between the affected individual, the doctor, and family, and social context and environmental variables during the course of the disease) that must be taken into account as well. When doctors don’t take these factors into account, “they present the illness as a set of biomedical facts, and [thus] truth-telling becomes a one-way act of information provided by the doctor.” Such a narrow view perpetuates the dominant role of clinicians over their patients, since only the doctor knows the truth and the doctor decides when and how to tell it to their patients. That is, they deliver the information rather than share it.
Surbone suggests a different model. The relationship between a doctor and a patient should be recognized as an open-ended dynamic process of ascertainment and constant reassessment of a truth shared between them. The relationship thereby acquires a different strength and character. Truth-telling becomes a bi-directional process aiming at constructing—rather than merely discovering—the truth.
Ethical theory is ambiguous on the point: deontology (autonomy)—tell the truth! Consequentialism (beneficence)—do what is best for the patient! Our culture has a bias towards autonomy, but, as the article points out, others disagree, preferring withholding information to prevent further suffering. Surbone suggests that truth is NOT a “static object that awaits the neutral discovery of the doctor who then tells it to the patient. On the contrary, the truth of the patient’s illness is the result of different subjective and objective relational components, evolving and changing over time, that are mutually shared by the patient and the doctor during the course of their relationship. Truth-telling is, therefore, a dynamic, iterative, and interactive process that takes place between the [doctor] and the patient, sharing many provisional truths in view of a common therapeutic goal” (63).
Contrast: the traditional view of autonomy implies that competent individuals are judged capable of making decisions about health-care because they are assumed to possess all necessary means and information to be able to understand the choose between their options. The relational view of autonomy, on the other hand, pays special attention to the internal factors of mental capacity, stress, various levels of understanding of medical information, and different subjective dispositions to sharing decision-making about their health care. Conclude with the final paragraph on page 65.
Medical Errors and Disclosure
To err is human. In medical/dental practice, mistakes are common, expected, and understandable. When do we tell?
What is a mistake? Two definitions
Ø A commission or an omission with potentially negative consequences for the patient that would have been judged wrong by skilled and knowledgeable peers at the time it occurred, independent of whether there were any negative consequences.
Ø Or from the Institute of Medicine: Failure of a planned action to be completed as intended, or the use of a wrong plan to achieve an aim.
We distinguish between systemic errors, for which the doctor may share responsibility, and individual errors, for which the practitioner has primary responsibility.
We also distinguish between errors that are remedial (the damage can be repaired) and those that are not (as a result, the tooth must be extracted). The authors argue that disclosure is an obligation for any cases of significant harm, and that it is rarely excusable not to disclose. Those cases are limited to cases in which, in the good judgment of the practitioner, disclosure would undermine the patient’s autonomy in some way.
Consequentialist considerations:
Potential Benefits to the Patient
Ø Disclosure is essential to future informed consent. The uninformed patient may be at risk of future misdiagnosis.
Ø The uninformed patient may worry needlessly about the potential side effects of a medical mistake.
Ø Knowing about the mistake may allow the patient to obtain compensation for lost wages or to pay for needed follow up care.
Ø Disclosure promotes trust in medical practitioners.
Potential Harms to the Patient
Ø May destroy the patient’s faith in the medical profession
Ø May cause stress and anxiety
Ø The disclosure of inconsequential mistakes may cause unwelcome confusion. Some patients may feel as if they would have been better off not knowing.
Potential Benefits to the Doctor
Ø The practitioner may be relieved getting the mistake “off my chest.”
Ø In a serious mistake, the patient or a family member may be the only ones able to forgive the mistake.
Ø Many patients appreciate honesty on the part of the doctor.
Ø Candid disclosure may (and has been shown to!) decrease the likelihood of legal liability.
Ø Disclosing mistakes can help us learn and improve our practices.
Potential Harms to the Doctor
Ø It hurts to admit a mistake. Admitting a mistake may expose one to a legal suit.
Ø Disclosure may result in loss of referrals, preferred provider status, etc.
Duty considerations:
This one is relatively simple. The fiduciary relationship between doctor and patient demands disclosure. All of the principles point to it. If the patient is harmed, the patient has a right to know it so that the patient can make an informed decision about the appropriate course of action. Remember nonmaleficence: first, do no harm. A caregiver has a grave responsibility to avoid harming the patient. This principle and professionalism enjoin the doctor to act for the best interests of the patient, EVEN IF the doctor’s own professional or financial well-being is not benefitted by so acting. Remember autonomy: disclosure is necessary to preserve patient autonomy.
Practical Issues in Disclosure
Ø Deciding whether to disclose: who should decide? Probably not the individual who made the mistake. Get a second opinion.
Ø Timing of disclosure: make sure the patient is stable enough to handle the disclosure.
Ø Who should disclose? In the case of dentist, generally the dentist her/him self.
Ø Incompetent patients: Depending upon the degree of competence, one of diminished competence can still appreciate an apology. As would the family.
Evidence is becoming strong that disclosing mistakes actually reduces the risk of litigation. Imagine the mistake coming to light later. That is when the possibility of litigation becomes very real.
Part III: Bad Work or Bad Outcomes?
First, we want to make a clear distinction between bad outcomes and bad work. The former is a possibility in any dental procedure. There are quite simply too many factors involved in this process to claim that any bad outcome is the result of bad work. Some teeth simply cannot be saved! Any practicing dentist will tell you this.
Let’s imagine that you are an endodontist and you have a referral for a root canal. You notice that the work done on the patient doesn’t look so good. Consider the three possibilities:
1) You judge that this bad outcome is not the product of bad work.
2) The question of bad work cannot be resolved with the available evidence or from the patient’s reports.
3) On the basis of the evidence, this is clearly a case of bad work. What do you do?
First duty: The ADA principles clearly state that you are obligated in all of the circumstances to inform the patient of his or her “present oral health status” (4-C). Doesn’t this require that we divulge that the patient has a “bad outcome”? Notice the complexity of this situation: You do have co-professional obligations to the first dentist, but you also have obligations with the patient—he or she is now your patient also. Which comes first, your obligation to your colleagues or your obligation to the profession as a self-regulating profession and to society as a professional? What do you tell the patient about the first dentist? Do you report to the state regulating board?
E. H. Morreim identified five levels of adverse outcomes to separate ordinary mishaps from real mistakes indicating incompetence.
1) It’s an accident, an event totally out of control of the dentist, perhaps the result of an equipment failure.
2) The dentist makes a well-justified decision that turns out badly, as in the case where a patient requiring an antibiotic, who has no known allergies, but suffers an anaphylactic reaction.
3) This one occurs when there are disagreements about treatment options, a common problem for dentistry. The ADA Code recognizes this: “A difference of opinion as to preferred treatment should not be communicated to the patient in a manner which would unjustly imply mistreatment” (4.C.1).
4) Here, the dentist exercises poor, though not outrageously bad, judgment or skill. The concern at this level is not the single error, but rather a pattern of errors (as we will see in one of our cases).
5) These are outrageous violations, such as the dentist performing unnecessary treatment, performs surgery on the wrong site, threatens the life of a patient. The ADA describes these violations as “gross” violations.