New Jersey's Medical Error Reporting Law, And What It Will Accomplish

An examination of the reasons why health care providers fail to meet their ethical obligation to disclose errors can shed light on how mandatory error reporting will change malpractice litigation. This is because the same forces discouraging such reporting likely discourage physicians from taking responsibility for mistakes after a lawsuit is filed.

Fear of Malpractice and More

Health care providers, of course, often hold back because of the fear of encouraging a medical malpractice lawsuit. Putting aside the question of whether avoiding being held financially responsible for a mistake is a valid basis to reject an ethical obligation to report them, scholarly articles addressing the subject of why physicians fail to disclose errors suggest other motivations. Notably, despite the fact that there are procedural safeguards in place to prevent statements made in morbidity and mortality (M&M) conferences from being used against a health care provider in a medical malpractice case, physicians are still reluctant to discuss medical mistakes in these forums. Beyond M&M conferences, academics have noted that physicians do not disclose errors even when they are permitted to do so anonymously, without fear of retribution. See, e.g., Wei, Marlynn, Doctors, Apologies and the Law: An Analysis and Critique of Apology Laws, 40(1) J Health Law 107-59, 132 (2007). So, what other factors may be at work to produce the communal silence around medical mistakes?

One explanation is obvious: Nobody likes to admit they've made a mistake. But the urge to gloss over an error may be even stronger in medical professionals than in the general population because of the types of people who go into the medical field. These are generally very confident people who have enjoyed outsized success throughout most of their lives. It has been hypothesized that a certain “medical narcissism” develops through doctors' “idealistic, perfectionist projection of themselves” that causes the mere acknowledgment of an error to be “so psychologically damaging to the physician's sense of self that he or she will go to great lengths to rationalize and obfuscate the facts of the error.” Vercler CJ et al., Communicating Errors, 140 Cancer Treatment and Research 195-213, 206 (2008) (discussing Banja J.D., Medical Error and Medical Narcissism, Jones & Bartlet: Sudbury, MA (2005). According to this theory, a kind of preexisting self-importance drives individuals to become physicians in the first place, and a narcissistic inclination is then supported and encouraged through the medical education process, where residents are encouraged to strive for perfection. Communicating Errors, supra, at 206. Emotional detachment is simultaneously developed as a survival strategy, and the loss of empathy and the goal of perfection combine to present a major barrier to disclosure of mistakes.

There are other aspects of the culture of medicine that contribute to the failure of physicians to disclose errors, including the desire of physicians to remain self-regulated. Simply put, physicians resent being told how to treat their patients, especially by non-physicians.

Furthermore, disclosure of errors chips away at the mask of infallibility that physicians wear. The myth of infallibility supports two fundamental aspects of the physician-patient relationship: The physician's position of authority in the relationship and the patient's sense of certainty in the soundness of the physician's treatment recommendations.

Physicians also resist the disclosure of errors because doing so creates worries about costs to reputation, loss of referrals and risk of litigation.

Finally, there are problems of analysis of the true cause of a bad medical outcome. A nurse or physician may suspect his or her actions caused a bad outcome, but they may not be certain enough of it to feel compelled to speak up.

Improving Health Care Quality, Even Beyond NJ's Borders

To date, the failure to disclose medical errors has undoubtedly undermined efforts to improve patient safety. Mandatory disclosure of medical errors in New Jersey will provide invaluable information useful to medical providers throughout the United States, not just within the state of New Jersey. First, it will provide information about the scope of the medical malpractice problem. In November 1999, the Institute of Medicine, a branch of the National Academy of Sciences, declared that a threshold improvement in the quality of health care was needed because studies indicated that medical negligence committed in hospitals in the United States was killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, Corrigan JM, and Donaldson MS, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999) (hereafter “To Err is Human”). As alarming as the statistics disclosed in this study were, it is significant that the analysis dealt only with deaths occurring in hospitals. New Jersey's mandatory disclosure requirements apply not only to hospitals, but to all health care providers in the state. In addition, any preventable event that impacts a patient's health for more than seven days must be reported, not just those adverse events that cause a death. Thus, mandatory disclosure of medical errors in New Jersey may provide the government and the health care industry with the first accurate picture of the human and economic costs related to medical mistakes.

Beyond acquiring knowledge about the scope of the problem, analysis of the information generated from a statewide policy of compulsory error disclosure will provide the health care industry with the ability to analyze patterns in the data collected to see why system errors occur. This will help determine what can be done to avoid or minimize certain recurring problems. Such a systematic approach to dealing with medical errors has been absent in the past. In To Err is Human, the authors noted that the health care industry is at least a decade or more behind other high-risk industries in its attention to ensuring the basic safety of people it services. New Jersey's statewide compulsory error reporting requirement is one of the most significant first steps taken to correct this problem. Clearly, industry experts all over the world will be watching what New Jersey learns on this front.

Are Increased Med-Mal Lawsuits Inevitable?

There are few health care systems that enforce a policy of mandatory medical error disclosure, and those that do have not been in place for long. As a result, it is difficult to estimate how the PSA's compulsory error reporting requirements will impact medical malpractice filings in New Jersey. Nevertheless, studies in smaller systems where similar rules have been imposed demonstrate that the impact of mandatory disclosure on filings may be negligible, and perhaps even positive.

The Veterans' Affairs Medical Center in Lexington, Kentucky, the University of Michigan Health System and a Colorado malpractice insurance company, COPIC, have developed programs to fully disclose medical errors while simultaneously attempting to compensate the victims of malpractice, if warranted. Disclosing Medical Errors to Patients: a Status Report in 2007, supra, at 266. All of these organizations found that the number of malpractice claims filed either stayed the same or decreased. Id.

Although seemingly counterintuitive, the idea that compulsory medical error disclosure may not yield more malpractice lawsuits is corroborated by studies concerning what motivates patients to sue their doctors. Financial compensation is not the most common reason that people give for filing a medical malpractice lawsuit. In fact, it is fifth on the list, behind the desire to obtain: 1) a clear admission that a mistake was made; 2) a full explanation of the error; 3) a sincere apology; and 4) reassurances that things are being done so that the error is not repeated. Thomas Gallagher et al., Patients' and Physicians' Attitudes Regarding the Disclosure of Medical Errors, 289 JAMA 1001, 1004-1006 (2003). If these results are to be taken at face value, it may very well be that because the PSA's compulsory error reporting requirements will immediately satisfy the first four of the above desires, some potential lawsuits will never be filed.

Impact on Medical Malpractice Claim Outcomes

The PSA has provisions that prevent disclosures made pursuant to its terms from being used against medical providers in a malpractice case. Any documents submitted to the Department of Health and Human Services are not subject to discovery or admissible in evidence in a civil or criminal hearing. N.J.S.A. 26:2H-12.25(f)(1). Additionally, a statement by health care provider advising a patient that he is the victim of a serious preventable adverse event is not discoverable or admissible in evidence in a civil trial.

Although disclosure of a medical error under the PSA may not be brought to the attention of a jury in a medical malpractice case, it is a mistake to conclude that the compulsory immediate disclosure of a medical mistake will not impact on medical malpractice litigation. Disclosure of a medical mistake under the PSA will require health care providers to immediately examine their actions and take responsibility for preventable adverse events of consequence. Not every serious preventable adverse event under the PSA will constitute a meritorious and viable medical malpractice claim. Nevertheless, every meritorious and viable medical malpractice case should meet the requirements of being a serious preventable adverse event under the PSA. Therefore, hereafter, in most medical malpractice cases, a defendant health care provider will have already examined his actions, concluded a mistake of consequence was made, and advised his patient and the state accordingly.

Failing to disclose medical errors when they occur will often foreclose a physician from acknowledging the mistake in a subsequent lawsuit. Doctors, Apologies and the Law, supra, 110-111. At a minimum, if a plaintiff prevails, a defendant doctor can appear cold and unapologetic to the jury. Furthermore, failing to honestly deal with a mistake at its outset can set the tone in a subsequent litigation, turning circumstances involving an honest error into a zero-sum credibility challenge, which unnecessarily escalates the stakes for everyone involved in the lawsuit.

Conclusion

Compulsory disclosure under the PSA should make medical malpractice cases less contentious because in many cases defendants will have already acknowledged and come to terms with the fact that they have committed a consequential mistake. Further, the cultural and economic pressures that discourage disclosure and reporting of errors are some of the same forces that serve as obstacles to resolving a medical malpractice lawsuit. Therefore, the PSA's compulsory error reporting requirements should obviate many unstated motivations medical malpractice defendants have for not taking responsibility for their actions throughout the course of a lawsuit. And, ultimately, injured patients and their families may be less inclined to “go for the jugular” in order to punish a medical professional who has already admitted to making an error, and has probably apologized.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner in Roseland, NJ's, Starr, Gern, Davison & Rubin, P.C. He specializes in complex litigation with an emphasis on medical malpractice, and can be reached by e-mail at: [email protected].

An examination of the reasons why health care providers fail to meet their ethical obligation to disclose errors can shed light on how mandatory error reporting will change malpractice litigation. This is because the same forces discouraging such reporting likely discourage physicians from taking responsibility for mistakes after a lawsuit is filed.

Fear of Malpractice and More

Health care providers, of course, often hold back because of the fear of encouraging a medical malpractice lawsuit. Putting aside the question of whether avoiding being held financially responsible for a mistake is a valid basis to reject an ethical obligation to report them, scholarly articles addressing the subject of why physicians fail to disclose errors suggest other motivations. Notably, despite the fact that there are procedural safeguards in place to prevent statements made in morbidity and mortality (M&M) conferences from being used against a health care provider in a medical malpractice case, physicians are still reluctant to discuss medical mistakes in these forums. Beyond M&M conferences, academics have noted that physicians do not disclose errors even when they are permitted to do so anonymously, without fear of retribution. See, e.g., Wei, Marlynn, Doctors, Apologies and the Law: An Analysis and Critique of Apology Laws, 40(1) J Health Law 107-59, 132 (2007). So, what other factors may be at work to produce the communal silence around medical mistakes?

One explanation is obvious: Nobody likes to admit they've made a mistake. But the urge to gloss over an error may be even stronger in medical professionals than in the general population because of the types of people who go into the medical field. These are generally very confident people who have enjoyed outsized success throughout most of their lives. It has been hypothesized that a certain “medical narcissism” develops through doctors' “idealistic, perfectionist projection of themselves” that causes the mere acknowledgment of an error to be “so psychologically damaging to the physician's sense of self that he or she will go to great lengths to rationalize and obfuscate the facts of the error.” Vercler CJ et al., Communicating Errors, 140 Cancer Treatment and Research 195-213, 206 (2008) (discussing Banja J.D., Medical Error and Medical Narcissism, Jones & Bartlet: Sudbury, MA (2005). According to this theory, a kind of preexisting self-importance drives individuals to become physicians in the first place, and a narcissistic inclination is then supported and encouraged through the medical education process, where residents are encouraged to strive for perfection. Communicating Errors, supra, at 206. Emotional detachment is simultaneously developed as a survival strategy, and the loss of empathy and the goal of perfection combine to present a major barrier to disclosure of mistakes.

There are other aspects of the culture of medicine that contribute to the failure of physicians to disclose errors, including the desire of physicians to remain self-regulated. Simply put, physicians resent being told how to treat their patients, especially by non-physicians.

Furthermore, disclosure of errors chips away at the mask of infallibility that physicians wear. The myth of infallibility supports two fundamental aspects of the physician-patient relationship: The physician's position of authority in the relationship and the patient's sense of certainty in the soundness of the physician's treatment recommendations.

Physicians also resist the disclosure of errors because doing so creates worries about costs to reputation, loss of referrals and risk of litigation.

Finally, there are problems of analysis of the true cause of a bad medical outcome. A nurse or physician may suspect his or her actions caused a bad outcome, but they may not be certain enough of it to feel compelled to speak up.

Improving Health Care Quality, Even Beyond NJ's Borders

To date, the failure to disclose medical errors has undoubtedly undermined efforts to improve patient safety. Mandatory disclosure of medical errors in New Jersey will provide invaluable information useful to medical providers throughout the United States, not just within the state of New Jersey. First, it will provide information about the scope of the medical malpractice problem. In November 1999, the Institute of Medicine, a branch of the National Academy of Sciences, declared that a threshold improvement in the quality of health care was needed because studies indicated that medical negligence committed in hospitals in the United States was killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, Corrigan JM, and Donaldson MS, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999) (hereafter “To Err is Human”). As alarming as the statistics disclosed in this study were, it is significant that the analysis dealt only with deaths occurring in hospitals. New Jersey's mandatory disclosure requirements apply not only to hospitals, but to all health care providers in the state. In addition, any preventable event that impacts a patient's health for more than seven days must be reported, not just those adverse events that cause a death. Thus, mandatory disclosure of medical errors in New Jersey may provide the government and the health care industry with the first accurate picture of the human and economic costs related to medical mistakes.

Beyond acquiring knowledge about the scope of the problem, analysis of the information generated from a statewide policy of compulsory error disclosure will provide the health care industry with the ability to analyze patterns in the data collected to see why system errors occur. This will help determine what can be done to avoid or minimize certain recurring problems. Such a systematic approach to dealing with medical errors has been absent in the past. In To Err is Human, the authors noted that the health care industry is at least a decade or more behind other high-risk industries in its attention to ensuring the basic safety of people it services. New Jersey's statewide compulsory error reporting requirement is one of the most significant first steps taken to correct this problem. Clearly, industry experts all over the world will be watching what New Jersey learns on this front.

Are Increased Med-Mal Lawsuits Inevitable?

There are few health care systems that enforce a policy of mandatory medical error disclosure, and those that do have not been in place for long. As a result, it is difficult to estimate how the PSA's compulsory error reporting requirements will impact medical malpractice filings in New Jersey. Nevertheless, studies in smaller systems where similar rules have been imposed demonstrate that the impact of mandatory disclosure on filings may be negligible, and perhaps even positive.

The Veterans' Affairs Medical Center in Lexington, Kentucky, the University of Michigan Health System and a Colorado malpractice insurance company, COPIC, have developed programs to fully disclose medical errors while simultaneously attempting to compensate the victims of malpractice, if warranted. Disclosing Medical Errors to Patients: a Status Report in 2007, supra, at 266. All of these organizations found that the number of malpractice claims filed either stayed the same or decreased. Id.

Although seemingly counterintuitive, the idea that compulsory medical error disclosure may not yield more malpractice lawsuits is corroborated by studies concerning what motivates patients to sue their doctors. Financial compensation is not the most common reason that people give for filing a medical malpractice lawsuit. In fact, it is fifth on the list, behind the desire to obtain: 1) a clear admission that a mistake was made; 2) a full explanation of the error; 3) a sincere apology; and 4) reassurances that things are being done so that the error is not repeated. Thomas Gallagher et al., Patients' and Physicians' Attitudes Regarding the Disclosure of Medical Errors, 289 JAMA 1001, 1004-1006 (2003). If these results are to be taken at face value, it may very well be that because the PSA's compulsory error reporting requirements will immediately satisfy the first four of the above desires, some potential lawsuits will never be filed.

Impact on Medical Malpractice Claim Outcomes

The PSA has provisions that prevent disclosures made pursuant to its terms from being used against medical providers in a malpractice case. Any documents submitted to the Department of Health and Human Services are not subject to discovery or admissible in evidence in a civil or criminal hearing. N.J.S.A. 26:2H-12.25(f)(1). Additionally, a statement by health care provider advising a patient that he is the victim of a serious preventable adverse event is not discoverable or admissible in evidence in a civil trial.

Although disclosure of a medical error under the PSA may not be brought to the attention of a jury in a medical malpractice case, it is a mistake to conclude that the compulsory immediate disclosure of a medical mistake will not impact on medical malpractice litigation. Disclosure of a medical mistake under the PSA will require health care providers to immediately examine their actions and take responsibility for preventable adverse events of consequence. Not every serious preventable adverse event under the PSA will constitute a meritorious and viable medical malpractice claim. Nevertheless, every meritorious and viable medical malpractice case should meet the requirements of being a serious preventable adverse event under the PSA. Therefore, hereafter, in most medical malpractice cases, a defendant health care provider will have already examined his actions, concluded a mistake of consequence was made, and advised his patient and the state accordingly.

Failing to disclose medical errors when they occur will often foreclose a physician from acknowledging the mistake in a subsequent lawsuit. Doctors, Apologies and the Law, supra, 110-111. At a minimum, if a plaintiff prevails, a defendant doctor can appear cold and unapologetic to the jury. Furthermore, failing to honestly deal with a mistake at its outset can set the tone in a subsequent litigation, turning circumstances involving an honest error into a zero-sum credibility challenge, which unnecessarily escalates the stakes for everyone involved in the lawsuit.

Conclusion

Compulsory disclosure under the PSA should make medical malpractice cases less contentious because in many cases defendants will have already acknowledged and come to terms with the fact that they have committed a consequential mistake. Further, the cultural and economic pressures that discourage disclosure and reporting of errors are some of the same forces that serve as obstacles to resolving a medical malpractice lawsuit. Therefore, the PSA's compulsory error reporting requirements should obviate many unstated motivations medical malpractice defendants have for not taking responsibility for their actions throughout the course of a lawsuit. And, ultimately, injured patients and their families may be less inclined to “go for the jugular” in order to punish a medical professional who has already admitted to making an error, and has probably apologized.

John Ratkowitz, a member of this newsletter's Board of Editors, is a partner in Roseland, NJ's, Starr, Gern, Davison & Rubin, P.C. He specializes in complex litigation with an emphasis on medical malpractice, and can be reached by e-mail at: [email protected].