South Florida Hospital News
Monday May 25, 2020
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July 2008 - Volume 5 - Issue 1

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Disclosure of Unanticipated Outcomes and Its Impact on Litigation

Disclosure may be defined as a process in medicine that involves reconstructing the events leading up to an adverse outcome and relating those events to the patient and/or his or her family as appropriate. An unanticipated outcome is an act of commission (doing something wrong) or omission (failing to do the right thing) that leads to an undesirable outcome or significant potential for such an outcome. Full disclosure is necessary in order for a patient to make informed decisions regarding future medical care after an unanticipated outcome. Some states, including Florida, have enacted legislation specifying how disclosure should be made (i.e., in person or in writing). In addition, various states, including Florida, have stipulated the impact of such disclosure on potential litigation.

The nature of the issues surrounding disclosure demands that the process be managed appropriately. The process should provide answers (in detail) to the following questions:

- Who is responsible for disclosure?
- What should be included in disclosure? What happened? How will this affect my health in the short term? How did this happen? What is being done to treat the problem I have now? Who will bear the cost of this error or complication? What will you do to protect other patients from a similar mistake?
- When should disclosure be made? Most of the literature agrees that the initial communication with the patient and/or family when appropriate should take place promptly—ideally within 24 hours after the discovery of an adverse event that may have resulted from a medical error.
- Where should disclosure be made? Every effort should be made to assure that the setting is a place where there is appropriate privacy, freedom from distraction, and a level of comfort for all concerned.
- How should disclosure be made?

Clearly the impact of disclosure on potential litigation is of concern to many physicians. While money may be the motive behind many medical professional liability lawsuits, at least some patients may seek only an explanation and an apology. Generally, in cases of clear error, an apology and admission of fault may make little practical difference in any subsequent litigation. In such cases, there is little chance of finding an expert to defend such care and, therefore, liability will be stipulated at trial. Nevertheless, prior to recommending or approving any disclosures admitting fault, legal counsel must be aware of any applicable state statutes involving the effects of coupling the required disclosure with an apology and admission of responsibility.

At present, there are 36 states that have statutes providing varying levels of protection for health care professionals, and, in certain states, other individuals, who make statements, or exhibit other conduct, expressing apology, sympathy, and a range of similar sentiments from use against the healthcare provider during trial. The scope of what is encompassed in the protection and declared inadmissible in civil litigation differs from state to state.

Interestingly, Florida Statute §90.4026 has provided coverage for certain types of expressions made in connection with any type of "accident" since 2001. However, in 2004 when Florida enacted its mandatory disclosure legislation, it included protection for such disclosures as follows:

Fla. Stat. §395.1051 – (Facilities) Duty to notify patients.

An appropriately trained person designated by each licensed facility shall inform each patient, or an individual identified pursuant to s. 765.401(1),[1] in person about adverse incidents that result in serious harm to the patient. Notification of outcomes of care that result in harm to the patient under this section shall not constitute an acknowledgement or admission of liability, nor can it be introduced as evidence.

Fla. Stat. §456.0575 – (Healthcare Practitioners) Duty to notify patients.

Every licensed health care practitioner shall inform each patient, or an individual identified pursuant to s. 785.401(1), in person about adverse incidents that result in serious harm to the patient. Notification of outcomes of care that result in harm to the patient under this section shall not constitute an acknowledgment of admission of liability, nor can such notifications be introduced as evidence.

While Florida’s "disclosure and apology law" was enacted to encourage disclosure and promote alternative dispute resolution, it is probably much too early to tell what effect it will actually have in solving the problems relating to tort litigation, health care liability, and liability insurance.

Ellen L. Barton, Director of Risk Management, Healthcare Underwriters Group, can be reached at (866) 484-5717 or visit www.hugroups.com.
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