Anthony Painter

Guest post by Stephen Adshead (part 2)

My previous post (Why doctors get sued) looked at research into particular behavioural characteristics exhibited by claims doctors versus no-claims doctors. This one is about truth, or what US comic, Stephen Colbert, called ‘truthiness.’

If a doctor has made a mistake, particularly one with dramatic consequences, the patient or client is likely to want an apology. For a study that was published in the Journal of the American Medical Association in 1991, interns and residents in three top medicine programmes in the US were asked about their mistakes and what happened subsequently. Virtually all reported a significant error, yet only half told their attending physician and fewer than a quarter told the patient or the family . To err is human, so perhaps we should not be surprised by the number of mistakes by doctors, particularly with the stresses they face.

Maybe we should not be surprised by a failure to inform the patient – doctors may be concerned that an apology is tantamount to an admission of guilt, and many have been given advice that they should not discuss anything with the patient, still less apologise, without clearing it with their lawyer.

More recent studies, in particular into the effects of ‘medical error disclosure’ (as it has become known), suggest that whilst there are potential downsides and risks to the doctors, paradoxically, the doctor-patient relationship can improve when the doctor discloses mistakes. It seems that if disclosure of medical error is made with compassion, in a timely manner, and with good communication skills both during and after the disclosure process, patients and their families are at least no more likely to seek legal action and some lawsuits may actually be avoided (see ‘Disclosure of medical error: is it worth the risk?’ and ‘Effects of medical error disclosure and apology.’)

Whether or not to tell the truth has been the subject of considerable philosophical debate. Immanuel Kant believed that telling a lie – any lie – is a violation of one’s own dignity and Baltasar Gracian said ‘a single lie destroys a whole reputation for integrity’. There may be a place for truthiness, or a lie that ‘does good’, and like many parents of small children I will shortly be participating in an enormous untruth, relishing the opportunity to put on a red coat and white beard.

If you are interested in this topic (moral truth, not Santa), I recommend Harvard political philosopher, Professor Sandel, and his Justice Course (A journey in moral reflection). This is now available online and for free – see in particular episode 7 where he tests Kant’s theory with a hypothetical case: If your friend was hiding inside your home, and a person intent on killing your friend came to the door and asked where he was, would it be wrong to tell a lie?)

If the patient/client is going to find out the truth anyway – for example the doctor operated on the wrong leg – this is an easy question to answer. The more challenging question is whether to tell the truth when the patient or client may never find out (and I have it on good authority from a surgeon that some mistakes can be covered up in a way such that the mistake is never discovered). In my experience, transparency vis-a-vis the patient/client may help (re)establish some credibility and integrity, and even if the patient or client is no less likely to seek legal action, the damages and costs claimed are likely to be less. Deception is unlikely to form a strong basis for a long and healthy relationship.

Stephen Adshead is a litigator-turned-risk manager-turned-blogger.