Consultant’s Corner

by James W. Saxton, JD; Maggie M. Finkelstein, JD; and Susan Gallagher Camden, RN, MSN, PhD

I have been hearing a lot about the healthcare community’s embracing of disclosure after an adverse event. How will it impact the practice of bariatric surgery?
Experts: The disclosure movement is being embraced throughout the nation by hospitals, physicians, and insurers. Accepting the concept is only half the battle. Doug Wojcieszak explains: “Acceptance is the first step. However, actual disclosure can be difficult for healthcare professionals. An organizational policy should be in place and training and education provided for the entire team. Patients want disclosure, but doing it right takes practice—in a way that provides open communication with patients at the same time that it does not negatively impact liability risk.”1 The concept of disclosure really does transcend the settings and, with its roots in ethical considerations, is often just simply the right thing to do. However, it also can have an added benefit to bariatric surgeons.

It goes without saying that the practice of bariatric surgery is unique, as are the patients who undergo bariatric surgery. Often the bariatric patient has several comorbidities impacting his or her health as well as his or her outcome post-bariatric surgery. Postoperative complications may include leaks, pulmonary emboli, infections, vitamin deficiencies, and much more, and they are not unusual in the care of the bariatric patient. The overwhelming majority of these complications occur because of the nature of bariatric surgery and the bariatric patient, not because of any malpractice by a bariatric surgeon. However, unless appropriate communication post-adverse event takes place with the patient and/or family, they may perceive a cover-up and believe that malpractice occurred, when in fact it has not. In bariatric surgery, this can take on great importance for reasons that include the impact of litigation on the bariatric surgeon. Post-event communication can derail a lawsuit—not all the time, but we have seen it happen. At a minimum, it will probably give defense lawyers better evidence if a case goes into litigation.

What we must realize is that this is not new; communication with patients and families after an adverse event is something that has been advocated for years. It is also essential with a bariatric patient whether there is an adverse event or not. The difference is that post-adverse event communication can impact frequency and severity. As mentioned above, everything that is communicated and documented is evidence.

The good news is that we know what patients want post-adverse event—communication, information, and empathy. When done in the right manner, doing so can increase patient satisfaction in the bariatric patient and family and reduce liability risk for surgeons.

This is why organizations throughout the country are providing their bariatric programs, practices, and teams with comprehensive disclosure education and training. Disclosure after an adverse event is not easy, and it requires a platform with commitment from all members of an organization (the board, the risk management team, the medical staff, and nursing). Implementing the right program is the first step, followed by education and training in order to effectively communicate post-adverse event.

I am still of the opinion that if I say “I’m sorry,” I am admitting negligence; therefore, I am pretty uncomfortable with this approach. How can I get past my concerns?

Experts: You are not alone with your concerns, as this is an often-asked question. The key is putting “I’m sorry” into context. Remember, “I’m sorry” is an expression of empathy, which is different that an apology. Empathy, or “I’m sorry,” is necessary after every adverse event. However, you are right to be concerned. It is easy for patients and families to misinterpret your empathy as an admission of responsibility. The key is ensuring that the right message is not only sent but also received. Read the following as an example:

“I am so sorry. Your mom suffered a complication from her procedure. I want you to know that we are conducting an investigation to learn what happened, and we are doing everything we can for her right now. I want to review those steps with you. I also want to review with you what we think happened.

Here is my business card if you have any questions or need assistance. The number on the card rings to a live person 24 hours a day, seven days a week. Also, as relatives come to the hospital please have them call the number on the card if they have any questions or concerns…I or someone from my staff will be happy to speak with them.

Is there anything else we can do for you or your family at this point? Do you have any questions? If not now, but after I have left if questions arise, please call the number on the card and I would like to have the opportunity to answer your questions.”

In contrast, an apology is generally thought to imply responsibility. In some instances, an apology is the right response after an adverse event. However, the key is ensuring that your circumstance is one of those instances before you accept responsibility. You must do due diligence first. Surgeons have a tendency to be hard on themselves. There is a very big difference between a complication and malpractice. This is important because when you do accept responsibility, it can have significant liability implications.

However, both empathy and apology can be done successfully. Following an adverse event, a healthcare facility, provider, and insurer should do everything possible to bring all stakeholders closer together with the goal of supporting the patient and family members so they better understand and feel embraced rather than abandoned. Concepts like communication post-adverse event are critical to doing so.

Suggested Reading
1. Wojcieszak D, Saxton JW, Finkelstein MM. Sorry Works! Disclosure, Apology, and Relationships Prevent Medical Malpractice Claims. Bloomington (IN): AuthorHouse: 2007.
2. Kraman S, Hamm G. Risk management: Extreme honesty may be the best policy. Ann Intern Med. 1999;131:963–967.
3. Leape L. Full disclosure and apology: An idea whose time has come. Physician Exec. 2006;32(2):16–18.
4. Wojcieszak D, Banja J, Houk C. The Sorry Works! Coalition: Making the case for full disclosure. J Qual Pat Safety. 2006;32(6):344–350.

Category: Consultant’s Corner, Past Articles