Richard P. Kidwell, JD,
Associate Counsel and Director, Department of Patient Safety/Risk Management
Robert G. Voinchet, JD,
President and Counsel, Captive Insurance Program
University of Pittsburgh Medical Center

Patients who are harmed as a result of a medical error look to their physicians for three things: an apology, an explanation of what happened, and an assurance that something will be done to prevent the mistake from recurring. At the University of Pittsburgh Medical Center (UPMC), physicians fulfill their patients’ expectations and remain available and accessible to their patients after such Serious Events. UPMC sees this commitment as a continuation of the dialogue between patient and physician that begins at the initial encounter. The accepted practice in the past was to avoid discussion of the topic of errors altogether. UPMC’s philosophy, though, is to keep the lines of communication open, especially after a patient has been injured, because that is when a patient needs a caring physician and the information he or she provides more than ever.

UPMC has a disclosure policy that exceeds the dictates of the Joint Commission and the Pennsylvania Medical Care Availability and Reduction of Error Act of 2002 (Mcare). UPMC’s doctors do not disclose errors just because of regulatory requirements; it is the right thing to do for both the patient and the physician.

We spearhead the efforts to inculcate UPMC’s physicians with an appreciation for the virtues of disclosure. The captive insurance companies, which cover all UPMC facilities and about 4,500 physicians, fully support the concept of transparency with patients. Patients are steered to insurance and risk management representatives when questions of compensation arise. The authors speak at departmental and hospital medical staff meetings about the reasons for and the methods to accomplish medical disclosure. If a mistake is made during the treatment of a patient, the worst reaction is to make a second mistake by ignoring the error or covering it up.

One of the tools to educate UPMC’s physicians is a video tutorial titled, “Removing Insult from Injury: Disclosing Adverse Events.” This video, in which one of the authors participated, was produced by Johns Hopkins Bloomberg School of Public Health and succinctly explains why and how disclosure should take place. (For more information, see http://www.jhsph.edu/dept/HPM/
Research/Wu_video.html.) UPMC is fortunate, too, to have several physician champions espousing the benefits of disclosure to their colleagues.

Unlike the majority of states, Pennsylvania does not have an apology law that protects disclosure discussions. Thus, there was some initial resistance from UPMC doctors who were concerned that an apology would be used against them in subsequent litigation. While an apology law would be beneficial (a bill is pending before the legislature), there are several reasons why disclosure should take place even in the absence of statutory protection. As previously stated, it is the moral and ethical thing to do. Second, a physician who is upset with seeing his or her patient injured can start his or her own healing process by discussing matters with the patient. (UPMC also provides a counseling service for its physicians involved in Serious Events.) Third, an honest discussion with a patient may be the key to avoid a claim, and UPMC has anecdotal evidence of such outcomes. Fourth, if a mistake has caused harm, UPMC’s insurance and risk personnel move swiftly to resolve any claim that may arise and forestall the event ending up in a jury trial where the apology is admitted in evidence. If, however, the claim cannot be resolved except by means of a jury trial, it is to a defendant doctor’s advantage for the jury to hear that the doctor apologized to the patient, offered an explanation of what occurred, and focused on the patient’s future care needs. Last, fear that disclosures will lead to increased claims and litigation has not been proven. While actively encouraging disclosure for the past several years, UPMC’s claim count has decreased and claim payments have been stable.

Part of the acceptance by physicians in UPMC’s disclosure program is trust in their colleagues in other departments. UPMC’s patient safety/risk management personnel work hand-in-hand with UPMC physicians when a patient is harmed as a result of a medical error. As spelled out in UPMC’s policy, early notification of an event to risk management personnel is important, so the facts can be analyzed and a plan put together on how best to communicate with the patient. Risk management personnel’s experience helps guide their medical colleagues through these delicate situations. Risk management personnel can also ensure compliance with regulatory requirements like Mcare’s Serious Event letters. As in all aspects of healthcare, teamwork is essential.

UPMC’s experience with advocating candid and forthright disclosure discussions with patients has been overwhelmingly positive. Physicians have embraced the policy as a result of the commitment of their leadership and after seeing the policy put into practice both through their efforts and the efforts of UPMC’s support staff.