Reader Seeks Balance in Disclosure Requirements

Keith McLendon, MD

To the Editor

I was deeply troubled by the “Adverse Events Require Communication and Disclosure” article in the Spring Newsletter. I am, like many other physicians, extremely conscientious about patient care and have an excellent rapport with most all my patients. I am completely honest with patients and their families when unexpected complications develop, and am a huge proponent of direct conversations with patients during their hospitalization and with family members immediately after surgery if problems do arise. However, I am in complete opposition to mandated disclosure requirements of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and The Medical Care Availability and Reduction of Error Act in Pennsylvania.

Ms. Trombly, an attorney, starts the article by stating that formalizing the handling of near misses and actual adverse events has become commonplace in other industries such as aviation and manufacturing. This certainly is true, but the airline industry is not mandated to send a formalized letter out to every passenger 7 days after it lands if it had to change the course of another plane to avoid a head-on collision at 30,000 feet. These complications are all handled “in house” unless the industry itself determines it is best to handle them otherwise or is mandated by a court to do so—there is no legal statute requiring this disclosure.

The article continues and describes JCAHO’s institution of a requirement for disclosure of “unanticipated outcomes.” She then talks about the legislation passed in Pennsylvania in 2002, entitled “The Medical Care Availability and Reduction of Error Act,” which requires a hospital, an ambulatory surgery facility, or a birth center to notify a patient (or patient’s family) of a “serious event” in writing within 7 days. The Act defines serious event as “an event, occurrence or situation involving the clinical care of a patient in a medical facility that results in the death or compromises patient safety and results in an unanticipated injury requiring the delivery of additional health care services to the patient.”

Here we go again! Physicians are being treated like second-class citizens in this country. All we have heard for the last 5 years is the protection of individual patient’s privacy. Patients can knowingly carry the AIDS virus and never divulge it to anyone. If they are embarrassed that they take an MAO inhibitor for depression they do not have to tell their health care provider if they choose not to. If they were treated for a cocaine overdose last week at another hospital and do not want the records transferred to the hospital that is now taking care of them, they are completely within their rights. We now cannot put their names up on any board that can be seen by other patients and sometimes have almost taken the wrong patient back to the OR so that we can “respect” their privacy. Yet, a physician is supposed to divulge every detail of virtually any unexpected event, regardless of how harmless or mundane it may be, within 7 days after it occurs in writing to the patient. Fairness to the physician—certainly not!

When I took civic class in middle school I learned that we had 3 branches of government (judicial, executive, and legislative) so that there was a checks and balances system to our government. However, the JCAHO has no checks and balances system. If the hospital or outpatient facility fails their inspection or does not heed their request it will not receive Medicare funding. Lord Acton in 1887 described this type of power the best: “Power tends to corrupt, and absolute power corrupts absolutely.” The JCAHO requirement for disclosure and The Medical Care Availability and Reduction of Error Act are an infringement of the Fifth Amendment to the Constitution. Despite what attorneys and JCAHO may believe, physicians do not forfeit their civil liberties in this country when they take the Hippocratic oath.

I will quote this relevant portion of the Fifth Amendment: “(No person) shall be compelled in any criminal case to be a witness against himself.” At first glance many will say we are not talking about a crime. That is not completely true. First, the constitution is saying that even a criminal should be extended this right. If that is true, and it is true, a physician should at least expect this concession. Secondly, if the physician sends a mandated letter to the patient or their family and attempts to explain his role in the unexpected poor outcome of this event and it is suspected from this explanation that the physician acted in a negligent manner, it can quickly become a criminal lawsuit. Finally, by enacting a law that mandates disclosure, if disclosure is not forthcoming, that individual has now committed a criminal act. The power of the JCAHO and the Pennsylvania legislature does not supercede the power of the framers of our Constitution.

The last topic I will address is the belief that it is possible not to increase your litigation liability with these mandated disclosure requirements. If I ask you to place a black box in your car that only registers times you exceed 75 miles per hour and then ask you to turn this into your State Patrol office at the end of each month, do you think you would increase the likelihood of being issued a citation for speeding? If you went into your local county police station and told them that you often smoked pot and used methamphetamine on the weekends, but had never been charged with drug possession, do you think that the next time your local police officer stops you for a traffic violation that there would be a greater likelihood he would ask for a blood test and/or search your vehicle for drugs? If you put a breathalyzer on your automobile to record your alcohol level every time you started your car and you kept a record of this for a year and at the end of that year a police officer looked at the levels of alcohol you were driving under, do you think there would be a greater likelihood you would be issued a DUI citation than if you were being stopped on a random basis by your local police? Would it not be a reasonable request to put breathalyzers on all vehicles to prevent so many DUI fatalities? The ACLU would say that this encroaches on our civil liberties, even if it is beneficial to the public. Anyone who believes that mandatory disclosure legislation will not increase our legal liability and jeopardize our ability to practice medicine is either being disingenuous or is certifiably insane.

Let me be crystal clear. I am a strong advocate of telling the patient and their family about any complications that arise during a surgical procedure, especially if unanticipated. I also believe that you should present this information to the patient and their family members with compassion and sincerity. However, I do not believe that this disclosure should be mandated. The decision of when and if disclosure is to be made to the patient or their family members should be retained by the physician unless we as a society wish to alter the Fifth Amendment of the Constitution. We should always strive for improvement, and in my opinion this can be obtained through M&M conferences that are sheltered from litigation, and a continuous quality improvements assessment of our practices. To advocate mandatory disclosure for virtually all unexpected/unanticipated events will only lead to a quagmire of what events must be disclosed, fines for not reporting certain events, and more determinations made by a jury of our “peers.”

Keith McLendon, MD
Atlanta, GA