An Attorney's Thoughts on Truth Telling

ACEP News 
June 2009

By Jennifer L'Hommedieu Stankus, M.D., J.D.
ACEP News Contributing Writer


The vast majority of people who become physicians are truly invested in helping their patients and achieving the best outcomes for them. For several decades, there has been an increasingly antagonistic approach toward how we manage mistakes in medicine. This trend has been brought on by a mistrust on the part of patients as their medical and insurance costs skyrocket and their access to care is more limited. It is further fueled by physicians' lack of time to spend just talking with patients, as patient panels are being ever expanded and demands on physicians continually increase.

It is also brought on by a physician's uncertainty about what to do when a mistake has been made. Hosptial administrators and attorneys had, for a long time, told doctors to refrain from telling patients and their families about errors because medical costs and malpractice awards have increased, and rampant litigation continues. The rationale was that withholding this information would curb malpractice liablity. This left the doctor in the middle. On the one hand, the physician wants to help the patient and be truthful, but on the other hand, there is a fear of lawsuits, which demonstrates a mistrust on the part of the physician toward the patient.

How did we get to this place? Physicians still remain, by and large, trustworthy and true advocates for the patient. Patients, although not to the same extent as in the past, still hold physicians in high regard and want to trust and believe in what they say. It is vitally important, in my opinion, that emergency physicians continue to trend toward truth telling. If we do not, this balance of trust may be forever lost, and trust is the foundation of the physician-patient relationship.

Fortunately, the pendulum is swinging back toward transparency and disclosure. There are several ways that this being accomplished. First, many institutions are adopting a truth-telling policy. This has been fueled in part by a large study of a VA hospital that has been ongoing for more than a decade. That study clearly demonstates that, at least for that patient population, patients are less likely to sue, even where there was negligence, as long as the physician told them of the mistake and told the truth.

Second, laws are being passed that allow a doctor to tell the truth at the time of the mistake, yet bar those statements from admission at trial.

Finally, physicians are frustrated by the antagonistic nature surrounding the handling of mistakes and are trusting that if they are listening to the patient, they are honest, and they are giving the best care that they can, most cases of malpractice will never enter the legal system because the patient will not want to file a suit. Research supports this view. Will it be true for all patients? No. But those patients would likely sue the physician anyway.

The bottom line is that mistakes will be made. They happen for a variety of reasons, but they will happen to each of us. The important thing is to recognize a mistake when it occurs and to fix the problem as rapidly as possible.

If there is some adverse outcome for the patient, the entire care team must be made aware of exactly what happened and why. This will allow for better learning and improved systems over time.

Further, the patient and the patient's family deserve an account of what happened and what is being done to fix it (if possible). Even where this fails and a lawsuit moves forward, I would rather go home at night feeling good about my integrity and the knowledge that I have good will, than to feel like I am trying to hide information from my patients for my own personal gain.

In the end, being truthful is the right thing to do, while being defensive and guarded ultimately hurts everyone.

Dr. Stankus is an emergency medicine resident at the University of New Mexico and is a former medical malpractice defense attorney. She is a member of ACEP's National Medical Legal Committee.

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