Medical errors, apologies and apology laws

Noni MacDonald, MD MSc and Amir Attaran, LLB DPhi have an editorial in the current issue of the Canadian Medical Association Journal that addresses the need for apologies when a medical error occurs.

The article describes the history of such laws in the U.S. in the 1990’s:

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Full disclosure to the patient is the ethically and professionally responsible course of action. It is also vital for improvement of patient safety and quality of care. By not disclosing adverse events, the physician fails the patient in terms of honesty, openness and respect. Furthermore, nondisclosure may put the patient at risk for future harms because he or she does not know what happened. Disclosure provides the patient with potentially vital information for making future health care choices and decisions. Candour about errors among colleagues is also critical for professional learning, patient safety improvements and public trust in the health care system.

Offering an apology with disclosure is an important component of addressing medical errors. An apology includes an acknowledgement of the event and one’s role in the event, as well as a genuine expression of regret for the patient’s predicament. An apology can have profound healing effects for all parties. For the physician, an apology can help diminish feelings of guilt and shame. For the patient, it can facilitate forgiveness and provide the basis for reconciliation.

To address the competing demands between the ethical and safety imperatives of disclosure and apology and the strong instinct to remain silent for fear of inciting malpractice action, apology laws were designed to reduce concerns about legal implications of disclosure and apology. They emerged in the United States in the 1990s as part of efforts to enhance medical error reporting and patient safety.

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I agree with the article, but it made me wonder yet again: why doesn’t this very same philosophy apply to data breaches? Why wasn’t HIPAA amended to include duty to notify or disclose a breach? Certainly the same arguments apply here on some level:

Full disclosure to the patient is the ethically and professionally responsible course of action. It is also vital for improvement of patient safety and quality of care. By not disclosing adverse events, the physician fails the patient in terms of honesty, openness and respect. Furthermore, nondisclosure may put the patient at risk for future harms because he or she does not know what happened.

Think about it.

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