Sunday, September 04, 2011

Labor, Delivery, Disclosure, Malpractice

Let's talk about a different kind of labor on Labor Day weekend, the kind that delivers babies, and an order issued this past week by the U.S. Court of Appeals for the Seventh Circuit in Chicago.  The case is styled Arroyo vs United States, and I want to focus on the concurring decision by Judge Richard Posner.

The appeal involved a question of whether a malpractice lawsuit was filed by the Arroyos after the statute of limitations had run out.  The statute exists to prevent "stale" lawsuits, those filed years after a reasonable period of time.  It makes sense to have such a statute of limitations, in that defending a case gets progressively difficult as years go by:  Memories fade and potential witnesses become unavailable.

The Court ruled for the Arroyos, based on the fact that it would have been unlikely for them to have understood that malpractice might have occurred during the aftermath of their baby's birth.  It therefore allowed the case to proceed.

Judge Posner, one of the world's most distinguished legal scholars,  issued a concurring decision that is interesting in its implications, were it to be come the law of the land.  He said that, had the hospital given full disclosure of the medical error at the time it occurred, the start of the clock for the statute of limitations would have begun sooner.  He asserted that the current standard of medical care envisions the ethical duty of such disclosure, and that failing to offer it cannot be used as a defense against a stale malpractice lawsuit.

Many of us have talked about the wisdom of early disclosure and apology.  It is an essential component of respectful and compassionate care.  In practical terms, it also reduces the risk of the kind of anger and distrust that leads to malpractice lawsuits or unreasonable demands for financial damages. 

But Judge Posner offers an additional incentive.  And he raises the issue to a new level by claiming that disclosure is an ethical duty inherent in the legal review of this type of matter.

Here are some excerpts from his concurring decision:

I need to make clear that I am discussing only the standard for determining when the statute of limitations begins to run, not the standard of care. Kubrick holds that the statute of limitations begins to run in a malpractice case when the plaintiff either discovers, or if diligent would have discovered, that he has been injured by the (at that point merely potential) defendant, and not when the plaintiff discovers or should have discovered that his injury was the result of negligence. This is not only the law; it is sensible. Even unsophisticated people, when they learn that they have been injured by a physician rather than (just) by the condition the physician was (or should have been) treating, should know that there may have been malpractice, and so should consult another physician, or other medical person, or a lawyer.

...Had someone informed the Arroyos that it was “highly possible” that the injuries to their child had been caused by the failure to administer antibiotics to Mrs. Arroyo, the statute of limitations would have begun to run then, just as in Kubrick. For they would have known, or in the exercise of reasonable diligence (reasonably understood in light of their socioeconomic position) should have known, that a cause of their child’s injuries might have been the failure of the doctors to administer antibiotics to Mrs. Arroyo; given that information, they would or should have known enough to consult a lawyer or other expert. That may be asking a lot of them; but to ask that they have suspected malpractice in the absence of any disclosure of the possibility of an iatrogenic injury would be to ask too much.

...[I]f the Erie Family Health Center (or its backer, the United States) wants to avoid being hit by stale malpractice suits, it has only to level with patients (or in the case of a child, the patient’s parents) concerning possible causes of a medical injury. When the Arroyos’ child was discharged from the hospital with brain injuries two months after his birth, the Center’s physicians told the parents only that their child’s injuries had been caused by an infection that Mrs. Arroyo had transmitted to him during his birth. They said nothing that might have alerted the Arroyos to the possibility that a medical act or omission had contributed to the infection. The physicians did not have to confess liability; indeed, at the trial the defense presented respectable evidence that there had been no negligence. All the Center would have had to do was give the Arroyos a reasonably full account of the circumstances of the child’s injuries — that antibiotics could have been administered to the mother before the birth and to the child immediately after and that had this been done the injuries might have been averted, or been less serious.

...“According to recent codes and guidelines . . . individual clinicians and institutions have an ethical responsibility to disclose unanticipated negative outcomes. Respect for personal autonomy entails disclosure of what occurred — even if no further medical decisions are involved — and of options to take nonmedical actions, including legal actions, if appropriate.” Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics 294 (2009); see also American Medical Association, Code of Medical Ethics: Current Opinions with Annotations § 8.12, pp. 141-42 (1998). If a patient dies as a result of his physician’s failure to diagnose a readily diagnosable, and if diagnosed readily curable, condition, such as appendicitis, it is a deceptive half-truth to tell the grieving spouse or parents that the patient died of appendicitis; the patient’s death was jointly caused by appendicitis and medical negligence. Compliance with the ethical duty of disclosure of possible medical errors in simple, intelligible terms would give medically unsophisticated plaintiffs enough information to recognize that medical decisions might have contributed to their injuries.

...I am not arguing that a breach of the ethical duty of disclosure is itself malpractice, although it could be if it prevented the patient from obtaining medical treatment that would mitigate the consequences of the original medical error. I am not arguing that the disclosure must go beyond an acknowledgment of the possibility of medical error and become a confession that there was a medical error; or that a doctor is required to explain that additional treatment might have avoided the patient’s injury if failure to provide that treatment would not have been negligent, because of the expense, side effects, or uncertain benefits of the treatment, as when a patient suffers an injury that would have been prevented had the doctor performed a battery of painful and expensive experimental tests. But if a potential defendant in a medical malpractice suit wants to take advantage of the statute of limitations he should have to disclose information known to him that would alert the patient to the possibility of an error. By doing that he can be sure that the statute of limitations will begin to run immediately . . . and not years later.


Anonymous said...

I'm no legal scholar but this doesn't help fix our broken system. As you should know, there is very little correlation between actual error and malpractice. This judge assumes that malpractice suits always come from clear cases of bad outcome. The real world is not so simple. Remember that after seeing a doctor 100% of patients will die.

The result of this could simply be more meaningless standard disclosure forms. "You are hereby notified that any injury or death, real or perceived, may or may not be the result of...."

Dale Ann Micalizzi said...

Very interesting post, Paul, and a topic that we've both been focused on for several years.

"But Judge Posner offers an additional incentive. And he raises the issue to a new level by claiming that disclosure is an ethical duty inherent in the legal review of this type of matter." An ethical duty to to my ears.

Learning from a physician informant, ten years following our son's death, that he was overdosed accidentally, and that everyone involved knew it immediately but never said a word through months of discovery...was just plain wrong. And, how many times has this happened to families merely seeking the truth and practices changed that would prevent the event from occurring again?

Hopefully, this will be the law of the land with an incentive to do the right thing. I wonder what the new statute for us would be in NY. Honestly, making this the law of the land would bring us more justice.

Anonymous said...

It is interesting that a thoughtful jurist would reach the logical conclusion that there is an ethical duty to disclose the possibility of an iatrogenic injury. Using the 'reasonable person' standard, one would have to agree that an outsider to medicine would be likely to reach this conclusion. After all, we are required by law to disclose all the things we know to be wrong with our houses when we sell them, and yet there is no requirement to disclose possible bodily harm or loss of life? Just think about that.

The other benefit to a required disclosure is that it would require patients' care to actually be routinely critically examined on an individual basis. It is staggering how often this examination simply does not occur; we physicians do not want to know, and neither does the hospital.

I think about the times I 'went along to get along' during my career (often under the convenient delusion that the hospital or physician would learn from the incident), and I am ashamed. Unfortunately, it will probably take a law to get this changed.

As for anon 1045's comment, I hear you - but I would submit that any hospital that takes the approach you describe in your last sentence is missing the entire point - as they often do. Reference several institutions' experience of a lowered rate of claims after they pursue a legitimate disclosure policy.

nonlocal MD

Bob said...

From Facebook:

Another very compelling reason to do the right thing. That is, to be honest and immediate when errors occur, and to not hold back...