Bradley Thomas Giordano | Disclosure of Errors

A push to require medical practitioners to report mistakes may improve healthcare quality, reduce insurance premiums, and offer a layer of protection against malpractice suits, states Bradley Thomas Giordano.

June 29, 2015 – The United States’ medical malpractice landscape is far from ideal, according to Bradley Thomas Giordano.  Claims are unpredictable, at best, and have an uneven history of success in situations where malpractice occurs or failure when it does not.  This systemic uncertainty reduces the torts system goal of providing fair compensation for injured parties.  Bradley Thomas Giordano notes that these unpredictable, and at times unfair, outcomes create an environment where providers often feel pressure to engage in defensive medicine and are subject to ever-increasing malpractice insurance premiums.

There are indications that a widespread increase in error reporting may eventually reduce provider liability in malpractice suits.  According to Bradley Thomas Giordano, additional data would make it easier to analyze and eradicate the root causes of various medical errors.  Pinpointing the typical causes of common errors, not just errors that result in bad outcomes, should substantially improve delivery of healthcare services.  Physicians would be able to implement a system of checks and balances to greatly reduce or eliminate the origin of the mistake.  Consequently, Bradley Thomas Giordano points out, mandatory disclosure of errors would likely result in a system-wide reduction of mistakes.

Furthermore, Bradley Thomas Giordano explains that a mandatory reporting system would provide the healthcare system with additional valuable data regarding the frequency of medical errors.  This theoretically should lead to less severe personal injury awards, as juries would be given evidence that certain errors commonly occur and are not necessarily indicative of a lack of care by the healthcare provider.  While commonality does not offer complete absolution from fault, it suggests an error could be reasonable and not necessarily negligent.  If this was found to be the case, Bradley Thomas Giordano believes resulting legal awards may become more uniform and less punitive.

Bradley Thomas Giordano believes fewer lawsuits against doctors would be the natural result in a system where mistakes are minimized and malpractice awards are more uniform.  This should lead insurance companies to note reduced liability and, in turn, lower premium costs to both consumers and healthcare providers.  This would obviously be dependent on the insurance companies’ willingness to pass on any realized savings, acknowledges Bradley Thomas Giordano.

A secondary effect of a mandatory disclosure of errors would likely be lower incidence of litigation and, therefore, lower litigation costs.  Bradley Thomas Giordano explains that this system would prompt providers to accept culpability for their mistake and apologize for it, pointing to a 2003 study by Thomas H. Gallagher that found evidence patients tend to value physician apologies.  Additionally, some healthcare systems, reports Bradley Thomas Giordano, have noted a drastic reduction in litigation with the implementation of apology protocols.  In 2007, the University of Michigan was cited with just 83 malpractice claims after implementing apology protocols; that number was 262 six years prior.  Conversely, to the extent an error occurred resulting in a bad outcome, automatic disclosure should encourage settlement as opposed to protracted litigation.

Physicians appear wary of a new system, observes Bradley Thomas Giordano, and some fear a mandatory system would prompt more litigation activity should patients become aware of small mistakes during their medical care.  The current operation of our medical malpractice tort system suggests this concern is far from unjustified according to Bradley Thomas Giordano.

Consequently, Bradley Thomas Giordano posits that the underlying system of assigning liability may need to change if universal support is the ultimate goal.  While a widespread change is unlikely at present, states wishing to improve healthcare quality by means of mandatory disclosure could encourage compromise by insulating both physician disclosures and apologies from use in subsequent malpractice litigation, summarizes Bradley Thomas Giordano.

Bradley Thomas Giordano suggests that the end result of mandatory disclosure of errors would eventually likely be an overall improvement in patient care, less unpredictable malpractice litigation outcomes, and monetary savings to all parties in interest, including doctors, patients, employers, and insurance companies.