Doctors Should Have a Duty to Admit Errors

The expectant mother is fully dilated for 10 hours. The obstetrician finally delivers the baby using forceps, twisting the newborn's neck in the process.

The woman, unaware of any problems, has her tubes tied two months later. Several months hence, the baby's permanent brain damage becomes apparent. The doctor never tells the family of the problems at birth. A malpractice action discovers the error.

Why is it that doctors do not feel compelled to tell their patients about mishaps? What is it about this profession that makes its members so sacrosanct from reporting errors? Part of what distinguishes a professional from another working person, at least in the public's mind, is an expected commitment to the social good.

Lawyers have an ethical duty to report to their clients when they discover they have made a mistake. Illinois Rule of Professional Conduct 1.2(3) states that a lawyer shall not "fail to disclose that which the lawyer is required by law to reveal." A pilot must immediately report a foulup s/he makes or sees, even if no harm ensues. Federal and state consumer protection laws require full disclosure to prevent eroding the trust of certain public employees, corporate directors and securities dealers.

But doctors apparently feel they are part of an elite who can claim a special privilege to withhold the truth when a blunder occurs.

Professions certainly are distinct from other occupational groups in two important ways: First, they hold a body of knowledge on which their practice rests; and, second, they embrace a special code of conduct that governs relations among colleagues, clients and the general public. Mistakes can emanate from either source.

Researchers at Harvard University released a study in 1993 that revealed that one million preventable injuries and some 120,000 preventable deaths occur each year in the nation's hospitals. Critics of medical policing say that the recent rend of deadly mistakes and medical mishaps has arisen because bad physicians are not adequately disciplined. I agree. But the lawyer should not be the sole policeman of the medical profession. It must discipline itself, as well.

Too often, though, the medical profession is caught up in a cadre of silence, fearful of legal action that may result from its negligence. Rather than explain to the patient or the patient's family what really happened, doctors sit in silence and allow the victims to suffer again in inexplicable ignorance.

When the mistakes are so obvious and so detrimental to the patient that a lawyer gets involved, the medical profession is the first to chastise the attorney for attempting to formulate norms for clinical practice. Nonsense. Neither lawyers nor patients have as clear an idea how to regulate the medical profession.

But what other recourse, what empowerment, does a patient have? It used to be that physicians were a person's trusted friend, a confidant - a hero, even, at times. But with managed care and the evolution of the medical profession, that's all changed.

Large health organizations deliver care with anonymous non-physicians making medical decisions. The view of the family doctor as the kindly, knowledgeable, trusted person has changed to one of greed, anonymity and mediocrity. (Hello, Dr. Liposuction!) Institutionally, the American medical profession is more heterogeneous, Balkanized and divisive than at any time in history.

Still, most folks expect success with the intervention of a doctor, an accountability generally established by the physician himself. Whatever course of treatment the doctor recommends certainly is based upon the expectation that it will cure or palliate the patient's condition. With most HMOs, it is a luxury to get a second opinion should the patient disagree with the initial physician's approach.

Certainly, the doctor takes on a certain amount of risk in making medical decisions. And the more invasive and complicated the medical procedure, the more social and ethical dilemmas can ensue.

But what is an acceptable risk? What is informed consent? All physicians take the Hippocratic oath, which requires, first and foremost, to "do no harm." When a mistake occurs, it must be difficult for a physician to admit that he performed a task less than competently and that another individual was made to suffer on account of it.

But a good doctor will do so, and the system should be set up to encourage such forthrightness. The patient has a right to know if a mistake has been made because it is the patient who always pays the price.

The physician does not promise to cure the patient. The most that the professional can promise is to help as best he or she can and in a fashion consistent with the highest standards of the community. What is really needed - starting even in medical school - is a discussion of the ethics of speaking up, despite the risks and repercussions.

The "Whistleblowers" cannot be viewed as dissenters or disloyal team members. They should not be criticized as unprofessional or as tattletales. Rather, speaking up should be viewed as something necessary to meet their professional responsibilities to patients, to colleagues, to the profession of medicine. A respect for truth must be instilled above all other virtues.

I am convinced that at the heart of the American medical profession is a deliberative moral community that wants to do right.

It should be left to them to set standards to care and to regulate its members. This crucial task is a characteristic of the profession and cannot be taken over by society, by patients, nor by lawyers.

Certainly the civil justice system is a way to define accountability and to punish mistakes. But it also can change doctors' behavior. It can publicize the habitual errant, the unforgivable error; and, ultimately, the medical profession will be better for it. All of these purposes serve a greater societal good.