Monday, September 06, 2010

Do patients want to punish?

There is a great debate set forth in the IHI's Open School discussion of the wrong-side surgery case that occurred at our hospital a few years ago. (I have written about this below, but there are some new postings.)

Kimberlee Ziga writes: I, as an RN working in an ICU, have also made mistakes. Thank God they have not been life threatening but nonetheless, they were mistakes. I was educated thoroughly and proven to be competent with testing. When I made that mistake, I was written up. I totally understood why. I am a licensed professional who is competent at her job, and that calls for accountability and responsibility. I believe all the medical staff involved should have been held accountable and disciplined accordingly. If that was my family member, I would have been irate for what they had to go through.

In contrast, Jessie Moon says:
Paul Levy . . . made it out like it was a serious situation, but one that could happen to any surgery team. He* did not punish any one person, but instead he took care of the situation by asking, "how can we lower the chances of this ever happening again", which makes the person and the family that this happened to feel better (or so I would assume), the public, as well as the workers in this hospital.

There are two parts to this question. What is the most effective way to reduce the likelihood of a similar event happening in the future? I have addressed this topic fully below. At heart, the answer goes to the definition of
the "just culture" that has been adopted by a hospital.

But let's talk about the second one:
What makes the patient and family feel better in a situation like this?

The literature on the topic of disclosure and apology suggests that patients and families are not interested in having the doctor or nurse be punished when a medical error occurs, if (and this is an important if), the clinician makes clear that he or she is clearly regretful about the error, is empathetic with the patient, and if the clinician and hospital show that they plan to learn from the error to help avoid repeats with other patients.

We can speculate on why this is the case. I heard IHI's Jim Conway discuss this once, and I think he had it right. Jim said that patients want to trust their doctors and nurses. That trust is enhanced when a clinician makes a clear and honest admission of an error and shows that s/he cares about the additional pain and suffering imposed on the patient.

However, the patient also wants to know that something has been learned from the experience. S/he wants an assurance that his or her pain is not in vain, that other patients will be less likely to suffer similar harm. This tendency comes from the inherent goodness in most people. We do not mind making personal sacrifices if other people are helped and a greater good emerges.

But, an additional step adds even greater value. As noted by Tom Delbanco and Sigall Bell:

Perhaps most important, building bridges to injured patients necessitates including them and other patients in the development of solutions. Patients and families will bring ideas to the table that expand the horizons of health care professionals. The yield from working in partnership could be enormous, both improving people's experience with medical error and preventing harm from occurring in the future.

* A slight correction for Jessie: The decision about punishing a member of the medical staff for clinical errors generally lies with the Chief of Service and with the hospital's Medical Executive Committee, not with the CEO. But I certainly concurred in this case.


Carmen said...

I believe there is a different point of view between nursing and medical personnel. The first one has been educated to follow procedures strictly while the second ones learned to understand the illness to create new therapies. Here lies a difference on how to approach this situation. Both sides are right in their own way. So the question is, which one is best for the patient? I believe this should be discussed case by case and proceed accordingly.

Anonymous said...

My hospital-based experience with patients' reactions to such incidents, as well as those of friends, overwhelmingly supports your stated motivation of, "I don't want this to ever happen to anyone else". If the hospital/providers' reaction is to ignore, close ranks, fail to provide information, or otherwise destroy trust - then that reaction turns to anger, and rightly so.

The problem I see is that most hospitals do not have an established mechanism for "including patients in the development of solutions." Patients' or families' initial approaches to the hospital, often to patient relations, floor staff, or lower level management, are rebuffed or badly handled, making it more difficult for the next hospital representative who has to deal with the now-angry patient.

Even if the patient gains access to someone with power to act, a formal policy and structure to include them in, say, root cause analyses or committees formed for action items, simply does not exist. This is something hospitals can address right now, once they understand the need for it.

Does BIDMC have such a structure?

nonlocal MD

Sm said...

Great topic. I think the real issue is not whether the individual actions deserve punnishment but how did levels of the organization contribute to this kind of error and are those holes now plugged. We should never soley depend on the actions of individual employees to maintain safety. Unless the error was blatently intended to cause harm, punnishment only serves to push errors deeper under the rug

e-Patient Dave said...

On long ago we had a guest poster who truly felt that Kaiser docs had *tried to kill* her daughter. Twice. And a significant factor was the stonewalling she got in response to all her questions.

This is such a difficult and important subject. In my view, the move to collaborative "participatory medicine" is not just about patients being active partners - it includes a healthy *interpersonal relationship* between patient and clinician. It includes (IMO) shared recognition that it's audacious when we try to invade people's bodies to fix them, and we're in it together.

I think of the MGH oncologist I met after my disease who, when patients ask "Can you save me," now answers "I don't know. But we will *try*."

This is big culture change, I know. That's why the Open School discussion is so important. In my keynote at ICSI in May, titled "What e-patients want," one slide was "Get over the perfection thing." I urged that we support MITSS (Medically Induced Trauma Support Services) and use their services. It's for patients and clinicians, founded by a patient and clinician after a serious error in the OR. *He* (the doctor) reached out to *her* (the patient after months of mutual suffering, and said "We have to talk."

How inspiring is that?

Does that answer the question?

(p.s. While I'm at it I should encourage attending MITSS's annual dinner and auction Nov. 4. *Wonderful* people and a much-needed cause.)

Jim Conway said...

Paul, when my father died from poor care many years ago, and we met with the president of the hospital, my mother wanted to know what happened, why it happened, what was being done to prevent it from happening again. She wanted someone to say they were sorry. First she held the hospital accountable. To the extent there were individuals accountable, she wanted them to figure that out and do something about it.
In my experience at Dana-Farber and in the years since, I’ve learned that most people want what my mother did; what happened, why it happened, and what’s being done to prevent it from happening again. There is accountability, empathy, support, and apology where appropriate.
I’ve also learned that errors don’t necessarily erode trust, it’s the way we act after them that can. Patients and families have often received great care in the organization and from the caregivers where they now have experienced harm. With support, resolution, learning, and improvement, there can be healing for all (patients, families, staff, organization, community)
As I read the beginning of your post from Kimberlee, I was also reminded of something I learned as a leader “Our systems are too complex to expect merely extraordinary people to perform perfectly 100% of the time. We as leaders must put in place systems that support great practice by people who suffer from being human and will make mistakes.” Health care takes great people AND great systems. No matter how good you are as a healthcare professional you will make mistakes. We must have systems that catch your “humanness” before it gets to patients and causes harm.
A very important discussion arising from this amazing community, the IHI Open School. Thanks for taking us there Paul.

Unknown said...

This is an area where our entire culture needs some serious overhaul. Look at the tiered response to legal responsibility in this country, and you have to see a skewed and broken system. Consider for a moment four deaths. In each case, someone makes a mistake that causes a death:

(1) A mechanic whose garage is on top of a hill works on a heavy truck but somewhat carelessly blocks the wheels. During his lunchbreak, the truck's emergency brake slips. The truck rolls downhill and kills a child.

(2) A policeman mistakes a toy for a weapon. He shoots and kills an innocent youth.

(3) A nurse injects the wrong medication. A child dies.

(4) A doctor cuts into the wrong artery. Her patient, a child, dies.

In each case the individuals at fault were exhausted due to lack of sleep. They knew they shouldn't be working, that working in that state was compromising safety, but they didn't want to admit to being too tired to work. Now, consider the consequences.

The mechanic (1) probably goes to jail. The child's family sues. The mechanic loses his business.

The policeman (2) is suspended. Worst case, he loses his job. Most likely, he receives a reprimand and eventually returns to work.

The nurse (3) is reprimanded. As Kimberlee Ziga says, he's written up. In some cases, the nurse might lose his job.

The doctor (4), in far too many cases, blames the child's state of health, the parents' care of the child prior to the surgery, an allergic reaction to the anesthesia. If this doctor is one of the rare few, she apologizes to the parents (if this occurs in a protected-apology state) but does not admit the cause. If the parents do not accept the doctor's claim and sue for malpractice, the insurance company settles out of court. Worst case, the doctor's malpractice insurance goes up.

Now, a lot of readers, going over what I've just said about the doctor, will assume that I want to see oversight sufficient to catch liars and crucify them. Nothing could be further from the truth.

The tiers I've described--emprisonment and ruin, suspension and loss of income, reprimand or job loss, cover-up or slight loss of income--are certainly unfair in application. This will lead many to think that the solution is to treat everyone the same. I disagree. All of these scenarios are equally flawed in that all of them seek a solution through fixing blame and punishing an error. Yes, the mechanic gets the fuzzy side of the lollipop in the current system, but condemning everyone equally just spreads the wrong evenly, accomplishing nothing. The dead are just as dead. We learn from mistakes--especially the big mistakes. No good--certainly no learning--can come of a system that punishes those mistakes.

Revenge provides no closure, it just takes one tragedy and makes two. Why not, instead, take that one tragedy and use it to prevent many others? Punishment has its place, but error isn't that place.

I'm sorry, Kimberlee, you didn't deserve to be written up. You deserved training to prevent a recurrance of your error. Possibly, you deserved a podium from which to teach the lesson your mistake taught you.

Do patients want to punish the doctors, nurses, and EMTs responsible for the deaths or disability of their loved ones? Certainly. Immediately after the fact, we all want revenge. Kill my wife, and I'll want to take yours. But really, honestly, do I deserve that? Any eye for an eye just creates a pandemic of blindness.

Once we've had a chance to grieve and come to terms with our tragedies, most of us--the rational, the intelligent, the fair--no longer seek vengeance. We want justice. We want a true and thoughtful M&M performed and lessons for the future extracted and applied. We want our deaths to make a difference. We don't want them hidden beneath a pile of legal jargon or swept away with a broom of lies.

So the answer to your question, Paul, is yes, but really-- ultimately--the answer is no.

Linda Kenney said...

Paul, great topic! I have found the same thing that patients/families do want to make sure it doesn't happen to someone else. Of course, after they have recieved the TRUTH! What we don't do well is acknowledge the emotional impact to ALL.

We don't give staff the information about the emotional impact and the stages for the patients/families. If we did, they would know that even if a patient/family doesn't want punishment, ANGER is a normal part of the healing process. We need to start addressing the impact to staff as well. If they can recognize it in themselves, they will be able to recongnize the emotional impact to the patients as well.

As a patient, I do expect that every hospital has a system in place that will not punish their staff but improve systems. However, I also expect that they will have a system in place to weed out their low preformaning or their staff that continual show reckless behavior. They are in every industry and we know it.

Thanks again for a lively discussion.

Linda Kenney

Linda Kenney said...

I forgot to add, we should do everything in our power to bring those staff members to becoming a high performer and try ways to get the staff member to NOT continue the reckless behavior.

Mary Ellen Mannix,MRPE said...

"If you want full credit for something, screw it up." ~ favorite quote of an MD/JD. Pride and shame are inherent human affects.

Punishing for medical errors is not about what the patients want, though we like to think that.
Legislation, laws, and insurance policies the past fifty plus years have steered the business of managing medical errors to where we are today.
If we sincerely wanted to do what the patient wanted there would be an equivalent to a "victim impact statement" in healthcare dispute resolution.
Patients are vulnerable, praying people often dealing with really important things - life and death. So, they dont really waste their time on timewasters - like punishments.
The people and processes placed between a patient (or family member) after an adverse medical event, the more difficult and time consuming healing will be.

After five and a half years, dozens of depositions, flights around the east coast, arbitration, a trial, and a split verdict over what happened to an 8lb baby boy - it was my belief in the innate good of someone who went to school for eight plus years learning how to heal that I could reach out to him and have the conversation we both needed all along.

Oh, by the way, that quote above happens to be my lawyer's favorite saying. Knowledge/education - Who, what, when, where, why, and how - is what a patient (family) wants after an error.

Kerry OConnell said...

Having experienced serious surgical mishaps by two different surgeons over a 10 month period of time I have thought a lot about what would make injured patients feel better and punishment was not the answer.

I believe the harshest, direst, experience on this Earth is to suffer alone! Yet one of the greatest most bonding experiences people can have is shared suffering. Consider what happens to most patients after a medical error:

Stage 1 Provider Denial - Patient is alone is his pain and his fear of his final outcome

Stage 2 Provider Limited admission – Patient is told a bad outcome occurred but he is a 1 in a million rare occurrence. Again patient is led to believe that he is alone and extremely unlucky.

Stage 3 Attorneys get involved – Now the wall of silence goes up and you are totally alone in trying to understand what really happened and how you can put your life back together.

After years of suffering through our incredibly brutal tort(ure) system I finally had the chance to talk to the surgeon. The most meaningful words he spoke were the descriptions of how badly he suffered also from the event we shared in that OR. Finally I was not alone! Doctors and Nurses must be allowed and encouraged to share their heartbreak with the patients that they accidentally injure. By doing this we can avoid lifetimes of guilt and bitterness and both can learn and heal.

Medical schools will teach that the greatest feeling on Earth is to bring a patient back from the brink of death. I believe that the greatest experience a Doctor can have is to be unconditionally forgiven by a patient that was seriously harmed.

Jeffrey N. Catalano said...

I have personally witnessed the benefits to both the patient and the physician when an apology takes place after a tragic medical error. (The event was published in an article in Mass Medical Law Report last year.) It proved to me that a physician's power to heal continues well after the treatment of the patient is over.

Stefani said...

I believe that whether a patient, or their loved ones, want to "punish" is going to depend entirely on the surrounding circumstances. Things that would make them want to punish include: lies, coverups, gross negligence, nonexistent or unenforced standards, a system that does not hold truly negligent practitioners accountable, and circumstances in which they learn that the same type of error which harmed their loved one had happened to others before, yet safeguards were not put in place. Worse still, a practitioner with a bad record is practising without adequate oversight, leaving a higher than usual medical error rate in his or her wake. This are things that make people justifiably angry, because it causes them to realize that either a) the harm incurred to themselves or their loved one was possibly forseeable and definitely preventable if only responsible actions had been taken, AND/OR b) they were lied to or not dealt with candidly and fairly in the wake of events, and responsible individuals, management, and institutions refuse to be accountable. These things make people very angry, just ask the folks over at SorryWorks! and they will tell you. I do not think that people seek to punish when a) the error or injury was an honest mistake that did not result from negligence or poor practices, and b) the institutions and individuals involved step up to take responsibility and c) deal fairly with victims in terms of restitution and ALSO demonstrate what steps they are taking to prevent such harms to future patients.

Anonymous said...

Never go to a doctor's office or a hospital alone. No one will protect you in our malignant medical system. The system is set up to intimidate the patient. When an injury or system failure of some kind occurs, you will not be treated well...

Isolated, vulnerable patients are most at risk of retaliation. There should be a patient advocate system that has nothing to do with the hospital or health care facility. Do not contact the hospital's "patient advocates"; they only hide or ignore bad events, making things more difficult for the next patient.

Unknown said...

Good input so far. From my perspective, sentinel events should be posted and actively surveyed by public health. Their incidence should be correlated with nursing ratios, training hours, mandatory overtime, total hours worked per employees involved & shared governance policies.

If mistakes are outliers then a risk manager + clinicians can apologize. We must do what we know already;however, to assure basic public safety.
This should include prospective documentation of inadequate staffing as dictated by the Mass. Nursing Union & the NNU.

Moreover we must not substitute social marketing like Magnet Certification for adequate supervision. That is because the public pays us to keep them safe not to keep the organization's momentum intact.

Health care is still a cottage industry that needs oversight. As a consequence, our patients,families & staff all need protections.

Finally I would argue that with a frail hospitalized population, a rounding palliative care team should be available. That team can help with family bereavement issues and End of life (EOL) counseling.

By reducing the social velocity and energy expent on on these EOL conversations, clinicians can spend more time helping patients with a higher propensity to survive. This is consistent with the approaches that the SCCM uses for ICU resource allocation.

Caring is not curing. A curative approach is only best when over treatment won't do harm. An caring approach that combines a treatment+palliative arm is likely to increase family centered care. Isn't that what we all aim to do.

All the best, KH