Long-term care facilities are not immune from the medical errors that plague healthcare. The amount of avoidable deaths in the U.S. due to medical errors is staggering.
Patient safety experts agree that medical errors are the third leading cause of death in the U.S. For example, researchers at Johns Hopkins determined that more than 250,000 deaths occur each year as a result of medical errors, according an article published in the British Medical Journal. Almost 20 years ago, the landmark Institute of Medicine study, “To Err is Human: Building a Safer Health System” observed that as many as 400,000 Americans die each year from preventable medical errors.
An accident waiting to happen?
The post-acute and long-term care environment presents an increased risk of medical errors for several reasons.
Most residents are on multiple medications thereby increasing the risk of medication errors. Additionally, many of the medications are high-risk medications, such as Coumadin and warfarin and have a small margin of error.
A study published in the American Journal of Medicine focused on the incidence of adverse drug events in two large academic long-term care facilities. The researchers analyzed 815 adverse drugs events and determined that 42% were avoidable. That study found that nursing home residents who were prescribed antipsychotic medications, anticoagulants, diuretics and anti-epileptics were at an increased risk of medication errors. Thirty percent of adverse events related to warfarin therapy were determined to be preventable.
The fact that the nursing home setting is ripe with opportunities for medical errors to occur is supported by a report from the General Accountability Office (GAO) from 2014. That GAO report concluded that 22% of Medicare beneficiaries experienced adverse events while being a resident in a nursing home. Further, 11% of nursing home residents who were Medicare beneficiaries suffered temporary harm resulting from adverse events during their stay in nursing homes. Given the GAO’s findings, the question isn’t whether adverse events will occur. Rather, it is when they will occur. Given that likelihood, it is incumbent on long-term care providers to have a fair, ethical and moral approach to disclosure of medical errors.
Other articles address the causes and suggest strategies to avoid and reduce medical errors. The purpose of this article is to examine a progressive and ethical approach in dealing with the aftermath of what some euphemistically call “medical misadventures,” also known as adverse events and medical errors.
When a medical error occurs, full disclosure to patients and their family is the optimal approach. While honest and candid disclosure of medical errors may send chills to some risk managers and defense attorneys, as noted below, recent studies suggest that it is not only the ethical thing to do but can actually decrease law suits.
Long-term care’s unique relationships
The nature of post-acute and long-term care providers is such that nurses, physicians and other healthcare professionals have a unique relationship with their residents which is not found in other healthcare settings. For example, since many residents live in nursing facilities for months and even years, the nursing and other staff cultivate ongoing relationships with residents and their families.
Those residents not only rely on the nursing and clinical staff, they trust them and have developed caring bonds that one expects in a communal setting. Those lasting relationships stand in stark contrast to the patient-clinical relationship typically seen in hospitals. Because of those ongoing relationships and the level of trust that has been rightly earned, it should theoretically be less challenging to disclose medical errors. Those relationships combined with progressive initiatives such as “apology laws” and “Sorry Works!” – both discussed below – may make the long term-care setting more conducive to full disclosure.
A number of recent studies indicate that timely reporting of adverse events and even offering an apology and compensation when the facility is at fault tends to decease liability costs. For example, as noted in the August 2010 issue of the Annals of Internal Medicine, the University of Michigan Health System (UMHS) reported a decrease in lawsuits as well as lower liability costs after it began disclosing and compensating patients for medical errors.
According to the UMHS, after it implemented its “disclosure-with-offer” program, neither its total claims nor liability costs increased. Rather, it reported that new claims decreased from 7.03 to 4.52 per 100,000 patient encounters. The UMHS experience suggests that compensation without litigation offers all stakeholders a win-win resolution. It seems reasonable that the same results UMHS observed would also be seen in the long-term care sector.
A VA story
Earlier experiments with full disclosure also demonstrate that patients and their families respond more favorably to full disclosure of medical errors rather than attempts at hiding or covering up medical mishaps. More than 30 years ago, the Veterans Affairs Medical Center (VAMC) in Lexington, Kentucky began its policy of full disclosure of medical errors. The VAMC’s policy called for complete disclosure of adverse events caused by negligence or error that resulted in harm to a patient.
Included in the disclosure was an apology and a discussion of compensation where serious harm resulted from the error. According to published reports, while the VAMC ranked in the top quarter of medical centers for the number of tort claims filed, it was in the lowest quarter for malpractice payouts resulting from these torts. Thus, taking an ethical approach to disclosing adverse events seems to have paid off for the VAMC.
Apology laws
Regardless of whether the setting is a skilled nursing facility, a home health agency, hospice or a medical center, making full disclosures coupled with an apology is a growing movement. At least 36 states have enacted some version of an “apology law.”
In most cases, an apology may not be used as evidence in a subsequent lawsuit. Some states have statutorily extended the disclosure of medical errors to prevent admissions of fault from being used in lawsuit. Providers should consult the apology laws in their respective states and consult with competent counsel in their jurisdiction for further clarification. However, even if a state lacks an apology law, making full disclosure is the appropriate path to follow. The take-away is that apology laws apply to nursing facilities and other long-term care providers as well as other healthcare settings.
Sorry works!
Doug Wojcieszak is a disclosure training consultant who created Sorry Works! and has trained over 30,000 healthcare, insurance, and legal professionals in the area of full disclosure of medical errors. Sorry Works! “has become the nation’s leading disclosure training organization by providing a variety of content that covers every way people learn, from on-line learning and in-person presentations to books, booklets, and e-newsletters,” according to its website. Wojcieszak is among the leading experts who focuses his efforts on educating the public about disclosure and apology.
“Following a medical error, residents and families want communication and their needs to be addressed in a fair and expedited manner,” said Wojcieszak. “This approach often removes the anger and the evidence that results in litigation.”
These are just some examples; more are to follow. But in conclusion, one can easily make the argument that full disclosure of medical errors is the legal, moral, and ethical approach, if not the only acceptable approach. As noted above, honesty pays.
Attorney and author Alan C. Horowitz represents providers as a partner with Arnall Golden Gregory LLP and also serves on the Board of Directors of a Colorado nonprofit hospice organization. Previously, he served as Assistant Regional Counsel in the Department of Health and Human Services’ Office of the General Counsel for more than 12 years.
