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Summary
At present there is no common law “fraud or deceit based cause of action” arising from a post-surgical discussion which would permit a patient to seek “punitive” damages from a doctor’s personal assets. However, the law is subject to change at any time. Failure to disclose material information regarding mishaps may violate patient rights to informed consent/refusal of future care. Fraud claims are permitted for record alteration. Statutes empower the Board of Medical Examiners and health care facilities to punish fraud, dishonesty and other “willful misconduct” in any situation. Doctors and other health care providers lose their privileges and licenses each year due to misconduct including fraud. It is unacceptable to lie to a patient or their family.
The Patient Safety Act is statutory law in New Jersey. Health care providers must report to their facilities, and facilities must report to their patients and the State all “serious preventable adverse events” and “adverse events related to an allergic reaction” during the episode of care, or if discovered after the episode of care, in a timely fashion. Notification of the patient or family must be documented in the patient’s chart. Voluntary reporting of “preventable events,” “adverse events,” and “near-misses” to the State is encouraged to help detect and repair flaws in the healthcare system. Doctors should familiarize themselves with their facility’s policies and procedures regarding disclosure. Penalties may be assessed for failure to comply with this law.
The PSA attempts to offer some protection from the use of this information against health care providers except in cases of “recklessness, gross negligence, willful misconduct” or a “pattern of substandard performance resulting in serious preventable events” which may result in disciplinary actions by the facility, professional board or Attorney General. The Dept. of Health and Senior Services has already issued some guidelines and will issue regulations governing disclosure under N.J. Admin. Code 8:43E-10 in the future. However, potential “loopholes” on access to and use of this information by patients and others against health care providers have not yet been ruled on by courts. Therefore caution is advised when communicating any mishap.
Although the PSA may not obligate a doctor to disclose a “preventable event”, “adverse event” or “near miss”, a patient may still claim disclosure would have altered their choice among reasonable medical alternatives, including their choice of provider. Therefore the common law duty to obtain informed consent or an informed refusal may exist even where no statute requires disclosure to a patient. Civil liability may result if the patient can prove it is more likely than not that disclosure of the omitted information would have caused a reasonable person to alter their healthcare choices and would likely have prevented harm. It may be wise for a doctor to contact their insurance company and seek counsel where there is uncertainty regarding disclosure duties.
Instead of viewing the law as a burden, try to recognize what may be your only opportunity to discuss the event with your patient and “set the record straight.” Patients will seek answers from other health care providers who may not understand what happened and may be critical of your care. Rely upon facts, not speculation in the disclosure to the patient or State. Indicate that only a “preliminary” investigation has occurred. Avoid derogatory or self serving statements.
Never assume your spoken or written words cannot be used against you or a colleague in the event of a lawsuit, Board or facility investigation. Obtaining a competent patient or family member’s signature acknowledging the date, time, participants and content of the notification may encourage patients to seek counsel and a copy of the document. However, the patient’s signature may also help prevent or defend claims that timely and appropriate disclosure was not made and that lack of disclosure resulted in further harm. Silence can be worse than disclosure.
After a serious preventable adverse event or other mishap, the patient may feel wounded both physically and psychologically by their health care provider. A candid discussion may start the patient on the road to recovery and may also begin to repair the relationship between the patient and their healthcare provider. The report to the facility and State may ultimately spare other patients and providers from similar events and improve health care in the future.
The foregoing is not to be construed as legal advice. Health care providers should familiarize themselves with the policies, procedures and requirements of their health care facilities for reporting and disclosing such events to their facility and patients. Health care providers are advised to consult a qualified attorney on the issues discussed herein and any related matters.
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