Walden University 2015

Ethical and Legal Implications of Medical ErrorsDanielle TateMMHA 6025-1 Week 3 Application

Introduction-Laws and Liability

In the instance of a 62 year-old woman, Ms. W, receiving wrong-site surgery to

remove skin cancer, the trauma was multiplied due to a previous medical error she had

experienced (Gallagher, 2009). This type of medical error is misfeasance negligence of

the ordinary degree. Misfeasance negligence is improperly performing an act that results

in injury to another person. The degree of ordinary negligence is failing to do what is

reasonably prudent under the current circumstances (Pozgar, 2014). The duty of care

requirement for negligence was met by legal obligation of the hospital and medical staff

to medically treat the patient under a contract via consent forms signed by Ms. W. To be

considered a contract there had to be an offer by the physician, consideration by the

patient, and both parties must accept the terms. The surgical staff not following the

standard of care that is expected by having a “time-out” before beginning surgery to

avoid medical errors met the breach of duty requirement (Pozgar, 2013). According to

The Joint Commission (2015), the recommended protocol to avoid wrong-site surgery is

to perform a documented time-out. At this time all staff involved in the immediate

procedure; anesthesia team, nurses, operating room technicians, surgeons, and all others

present in the operating room, should at a minimum; confirm they have the right patient,

confirm they have marked or identified the correct surgical site, and confirm they are

about to perform the correct surgery (The Joint Commission, 2015). Failing to do this

resulted in malpractice on the doctor’s part by commission and omission of an act.

Malpractice is “the negligence or carelessness of a professional person” (Pozgar, 2013).

The physical and emotional pain, mental trauma, financial damages due to time off work,

and needing to go through two surgeries met the injury requirement for negligence. The

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omission of the standard time-out directly resulted in the wrong surgery occurring, which

met the causation requirement (Pozgar, 2013). Not only is the surgeon liable, the hospital

can be held liable for corporate negligence. Corporate negligence is “a doctrine under

which the hospital is liable if it fails to uphold the proper standard of care owed the

patient, which is to ensure the patient’s safety and well-being while at the hospital. This

theory of liability creates a nondelegable duty which the hospital owes directly to a

patient” (Pozgar, 2013).

Ethical Principles

The ethical principle of justice was violated in this instance. Justice is the

obligation of fairness when distributing benefits and risks. When the medical staff failed

to follow the standard of observing a time-out that is allotted other patients, this was not

treating Ms. W justly. “There is the universality of the contractarian vision of just

institutions and fair process (how fairness "ought" to be), and there is the quantitative and

measurable focus of utilitarian approaches, which echo the underlying assumptions of

rationality, universality, measurability, and predictability of this side.” (Edwards,

Delaney, Townsend, & Swisher, 2011). The lack of time-out caused harm to the patient

violating the ethical principle of nonmaleficence. “Nonmaleficence refers to the maxim

of primum non nocere, which translates to ‘above all, do no harm’…This principle of

nonmaleficence prohibits causing of harm” (Friend, 2011). The Hippocratic Oath requires

healthcare providers to avoid doing harm and do what is best for the patient in the

healthcare provider’s medical opinion. This oath was broken by the medical staff when

they performed surgery on the wrong site (Pozgar, 2013). These ethical violations caused

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the patient to lose trust and faith in medical providers and healthcare organizations and

also resulted in anxiety, pain, mental distress, and another surgery.

Error Disclosure and Communication

It is important to patients that when an error occurs they are told about it

promptly, that time is taken to thoroughly explain what happened, and that they are

apologized to, so they can make educated decisions about their healthcare going forward.

This enhances the patients right to autonomy, or one’s own decisions regarding treatment

or have the power-of-attorney make informed decisions when the patient themselves are

not physically or cognitively able to make their own decisions. “Fundamental to the

exercise of patient autonomy in surgical decision-making is the process of informed

consent, where the patient’s decision to consent for an operation needs to be grounded on

a basis of relevant information…informed consent requires processing of sufficient

information that will allow for judgment at a personal level. A necessary component to

make an autonomous decision consistent with a patient’s preferences and values is the

acquisition of relevant information as part of the disclosure process” (Ganai, 2014). In the

case of Ms. W, her physician was open regarding what happened, was apologetic, and

openly admitted that this error was her “worst nightmare”. Ms. W also had the

opportunity to speak with the head of the surgical unit and the director of the hospital.

This allowed her time to communicate her concerns, frustrations, and what she needed

from the organization and professionals. Ms. W’s one concern was that she was never

allowed the opportunity to speak to the trainee who marked the wrong site on her face for

surgery. She expressed that this was, “…a real loss for both of us” (Gallagher, 2009).

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Having the physician speak with the patient soon after an error occurs can help

mitigate some of the anger and frustration that the patient is feeling, reduce anxiety of the

unknown, and give the patient reassurance. However, if the physician is very emotionally

distraught about the situation and has not been given time to process what happened, they

will be less equipped to focus on the patient and the patient’s needs, which can do more

harm. Once the physician has control of his or her own emotions and has the chance to

speak with the patient, it can be cathartic and healing for all parties involved. For quite

some time it was thought that disclosure would automatically lead to litigation, but

studies show that disclosure actually reduces litigation and malpractice lawsuits. Some

laws have been created to protect disclosure statements from being used as proof of

liability (Gallagher, 2009). It is suggested that using an optimistic tone during disclosure

can increase the risk of litigation (Rogers, Buskirk, & Zechman, 2011).

Conclusion

Training staff on policies and procedures and adopting protocols created by The

Joint Commission can reduce the occurrence of errors (The Joint Commission, 2015). It

is suggested that the institution and a healthcare team should be at the center of the

disclosure, not just the physician. This can provide emotional support for the patient

(Gallagher, 2009). Having an ethics committee and legal advice can help healthcare

administrators decide if laws or ethical principles have been violated and what to do if

this occurs. “Justice can be advanced and enacted through the development of morale

agency on the part of both practitioners and patients” (Edwards, Delaney, Townsend, &

Swisher, 2011). Clinicians want to do the right thing and they want to disclose errors to

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patients, but often they’ve never received training or guidance on how to do so.

“According to published surveys in the United States, most hospital policies endorse

disclosure, but few clinicians have had disclosure training. Even fewer institutions track

whether disclosures have occurred or evaluate their quality…National Quality Forum

Safe Practice offers a model that institutions can use to develop their disclosure

programs. It calls for disclosure training of clinicians and having “disclosure coaches”

available around the clock to provide just-in-time support for clinicians immediately prior

to a disclosure” (Gallagher, 2009). This type of support to providers can reduce litigation

and enhance patient healing (Gallagher, 2009).

References:

Edwards, I., Delaney, C., Townsend, A., & Swisher, L. (2011). Moral agency as enacted

justice: A clinical and ethical decision-making framework for responding to health

inequities and social injustice. Physical Therapy, 91 (11), 1653-1663. Retrieved from:

http://search.proquest.com.ezp.waldenulibrary.org/pqcentral/docview/

904409830/3E7A49DD093441C7PQ/1?accountid=14872

Friend, M. (2011). Physician-assisted suicide: death with dignity? Journal of Nursing

Law, 14 (3), 110-116. Retrieved from:

http://search.proquest.com.ezp.waldenulibrary.org/pqcentral/docview/913146489/

DEC9C4738E33459CPQ/16?accountid=14872

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Gallagher, T. (2009). A 62-year-old woman with skin cancer who experienced wrong-site

surgery: Review of medical error. Journal of the American Medical Association [JAMA],

302 (5), 669-677. Retrieved from: http://sfxhosted.exlibrisgroup.com/waldenu?

sid=google&auinit=MWB&aulast=Threemonthslater&atitle=A+62-Year-

Old+Woman+With+Skin+Cancer+Who+Experienced+Wrong-

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+the+Journal+of+the+American+Medical+Association&volume=302&issue=6&date=20

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Ganai, S. (2014). Disclosure of surgeon experience. World Journal of Surgery, 38 (7),

1622-1625. Retrieved from:

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1548171890/1CB64B3A8A1A4B7DPQ/1?accountid=14872

Pozgar, G. (2013). Legal and Ethical Issues for Health Professionals (3rd Ed.).

Burlington, MA: Jones & Bartlett Learning.

Pozgar, G. (2014). Legal and Ethical Essentials of Health Care Administration (2nd Ed.).

Burlington, MA: Jones & Bartlett Learning.

Rogers, J., Buskirk, A., & Zechman, S. (2011). Disclosure tone and shareholder

litigation. The Accounting Review, 86 (6), 2155-2183. Retrieved from:

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http://search.proquest.com.ezp.waldenulibrary.org/pqcentral/docview/1017876037/

ADCD40BB2D96424APQ/4?accountid=14872

The Joint Commission. (2015). The universal protocol for preventing wrong site, wrong

procedure, and wrong person surgery: Guidance for health care professionals. Retrieved

from The Joint Commission website:

http://www.jointcommission.org/assets/1/18/UP_Poster.pdf

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