Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

You are doing a cholecystectomy. You nick the common bile duct. You repair it immediately. The patient makes an uneventful full recovery from surgery, is feeling fine, and is ready for discharge.  

Do you tell them what happened?  

Yes.   

In fact, you must tell them. 

As good as your repair was, they are still now at a risk for stricture that they did not face before, and they must be informed of that because they would otherwise have no way of knowing about it.  

Informing them of that new status is part of your legal duty under the doctor-patient relationship, which places a fiduciary responsibility on you to inform patients of facts about their health -including facts that you may have caused.

It is also part of a patient’s right to knowledge about their own health – to be an informed participant – that underlies all medical care.

You will therefore remind the patient that this was a possible complication that they were informed of before surgery, and will explain to them that while it is unlikely that they will have any future problems they should still be alert and call you immediately if they experience symptoms such as pain or jaundice.

This is the relatively easy case – there was no serious harm done, and you had the chance to cast the matter in the most favorable terms while also limiting your future liability by making sure that any complications that may arise will be caught early. 

But what about the hard case – the one where your error is potentially serious and may lead to litigation? 

The answer, as you may have guessed, is that the duty to disclose still applies. 

That having been said, we all know that disclosure is not what is generally done because of the belief that what the patient does not know may never hurt you while revealing is a short road to a lawsuit. 

However, disclosure is increasingly being seen through a very different lens: damage control. 

A recent study in the journal Medical Care found that when offered an apology, only 25 % of patients still intended to sue.  Being offered remediation was also a critical factor.  

Similarly, a 2010 study in Annals of Internal Medicine looked at disclosure policies at several institutions such as the University of Michigan and the Lexington, KY VA.  It found that the number of lawsuits, the time to resolve them, and the average costs of them all decreased. 

This is data that insurers (in fact, the latter study was conducted by an insurance broker) and operating officers of facilities and medical practices look at.  As they begin to see fewer lawsuits and lower payouts there will be a shift from the “slam the door closed” approach to one favoring disclosure. 

The fact is that if there was malpractice sufficient to cause actionable damages it will eventually manifest, and when it does the physician will be viewed by the patient – now the plaintiff – as an enemy. 

At best, it becomes anxiety-ridden gambling for the physician, who is hoping that when the problem becomes evident it will do so after the Statute of Limitations has run out. 

On the other hand, prior disclosure under circumstances that the physician controls puts him or her in the role of an honest person in the patient’s eyes, and a candid discussion actually reinforces the bond of trust, defusing patient anger. 

The fact that this process is intrinsic to a strong physician-patient relationship was demonstrated in the Medical Care study, cited above.  There, 60% of the respondents who said that they trusted that their physician would reveal an error to them said that they would still recommend that physician to another person should that ever happen. 

Put bluntly, you do not want to lose the trusted status that you already hold in your patient’s eyes and let the patient reach the point where they are more comfortable talking to a lawyer than they are talking to you. 

Disclosure also has an important legal consequence in that it precludes a claim of fraudulent concealment, a tort which – precisely because it is intentional – is not covered by malpractice insurance. 

Evidence that a physician concealed what he or she knew about their own error can also increase the time available to sue them. It can either toll the Statute of Limitations or, if the Statute has run as to medical malpractice, can be sued on in and of itself since it usually carries a Statute of Limitations at least three times as long as the one for medical malpractice. 

Finally, disclosure can effectively limit the monetary damages. 

A patient who is unaware of an error in their care is ill-prepared to be able to respond when it begins to manifest.  In fact, believing themselves to have been cured, they may actually ignore important symptoms.

Their lack of knowledge about the harm also intersects with other medical care because they lack the knowledge necessary to make well-informed decisions subsequently.  They may therefore either enter into treatment that will actually exacerbate the problem, or they may defer helpful treatment simply because they do not know enough about their own situation to know that they need to be treated.

Simply put, they will most likely be sicker by the time that they are diagnosed, and that increases the damages – and that increases the likelihood that a lawsuit will be brought.

States are also increasingly taking steps to encourage disclosure as part of a more expansive program of tort reform.  Over thirty states have “apology” laws that shield a physician’s statement of error and regret from being admissible as evidence should there eventually be a lawsuit for medical malpractice.

For all of these reasons, disclosure will likely become increasingly common because employers and insurers will require it to limit their own exposure.

The only question in that setting is what should be disclosed. 

The standards in this regard are evolving.

The widest standard was articulated by the Fifth Circuit (covering Louisiana, Mississippi, and Texas). It held that the fiduciary relationship of the doctor to the patient imposes a duty to disclose “known facts”, which includes the discovery of “any adverse condition afflicting a patient due to physician error.”

Other courts have taken a narrower view, extrapolating from the principles of informed consent.  Some use the Reasonable Physician standard and hold that a doctor must disclose those facts that he or she should know that the patient needs and others use the Reasonable Patient standard and hold that the doctor must disclose whatever a reasonable patient would want to know.

What all of these standards come down to, however, is that the patient should not leave the situation under a fundamental misconception of what happened and how it affects them.

All courts do agree on the fact that the disclosure should be limited to material facts, meaning facts of sufficient importance to affect future health and choices of treatment. Minor matters that will not have future consequences and mistakes that were caught before any harm was done do not have to be disclosed.

The disclosure must also be carried out within a reasonable time after the doctor became aware of the error.

It must also be done in a way that practically conveys the information.  For example, a medical jargon-laden discussion with a patient whose educational level is low or whose English is poor would not be a valid disclosure.

A court will analyze the circumstances of the disclosure under a conflict of interest paradigm, assessing whether the physician favored personal interest over the interests of the patient.

No court, however, demands the use of words like “error” or “mistake” or even a direct admission of culpability by the disclosing physician.  The doctor is free to shape the disclosure as long as (1) he or she does not fraudulently conceal their own role and (2) the patient gets the needed information.

Up until this point, we have been discussing disclosure to patients, which is considered optimal ethical conduct.  However, there is also disclosure to other physicians.

In this setting, the fact of the error is simply a necessary piece of clinical information that must be given to a colleague, just as a favorable clinical fact would be.

Discussion with the other physician alone is not enough.  The facts must also be recorded in the chart because later consequences may end up being handled by physicians who were never made privy to the actual problem.

If the other physician states that he or she prefers to do the disclosure to the patient then that should be documented in the chart.

This all having been said, disclosure is not to be done without care.

You need to find out what your state law is. Even though a majority of states now have “apology laws” that prevent voluntary disclosure of a medical error being used against the doctor in a malpractice action, the terms of these laws can be very different.  For example, Colorado permits a frank admission of fault to be excluded at trial, but in Maryland a comment like “It was my fault” is admissible.

The disclosure must then be done with the knowledge of those who will either cover or share in a liability payment.  A malpractice carrier can deny both defense and coverage to a physician who has made inculpatory statements without checking with it first, and a group or hospital that will be drawn into action is unlikely to be supportive of a physician that it is now adverse to over an event that it never had the chance to weigh in on.

In this regard, it is important to note that most successful “apology” programs, such as that at the University of Michigan, are integrated systems that then also offer an out-of-court settlement.  They can do so because they are self-insured – they can literally run the process from beginning to end.  That would not apply when there are several independent third parties involved.

The first step, before any contact with a patient or family, is documenting the situation, and this will be the first point in which consideration of the role of third parties comes into play.

If there is an institutional policy, such as the requirement of an incident report, you must follow it. In most cases, these reports will solely be used by Risk Management, but some states do allow their discoverability.

If you are simply documenting the chart, recite the medical facts, including any additional treatment that was or may be needed as a result of the error but do not include any personal feelings or assignment of blame.

You must also personally present the facts to your malpractice carrier and to the representatives of any parties that may have to answer for your conduct, such as the managing partner of your group or the legal department of your hospital, or your risk manager.

You should focus on specifically what deviation there was from the standard of care and what the likely consequences are for the patient.  This will permit the insurer and the supervisory parties to calculate likely damages and to evaluate whether they prefer to offer a settlement.

Any disclosure to the patient and/or family should then be handled within the parameters that all of these parties jointly agree to because that disclosure may not end the matter and you will need them to be in your corner if you face litigation.

The next step is to select a proper time and place for the discussion. It needs to be private and quiet, and you need to have enough time available to you to answer questions fully.

The disclosure discussion should be limited to the patient, with close family members also included if the patient so requests.

If the patient is no longer competent to make medical decisions, the disclosure should be to those who will now be making those decisions.  This may or may not be the next of kin, and therefore you should inquire if there is a designated surrogate under a medical power of attorney.  Because the surrogate decision maker is deemed to stand in for the patient in making choices of care, he or she is, through an extension of the physician-patient relationship, entitled to receive the same information that the patient would be entitled to receive to enable informed decisions.

If the patient has died, the disclosure should be to the representative of the estate.  Again, this may or may not be the next of kin – for example, a son or daughter may be the designated person if the surviving spouse is themselves frail – and so you should check with the family.  In this case, the right to know the facts comes from the estate’s standing to seek damages both for the patient’s own suffering (a survival action) and the estate’s losses (a wrongful death action).

What all of these scenarios have in common is that the smallest number of participants should be in the room so that the discussion can be conducted in a clear and orderly manner, but that no one with a legal right to the information should be excluded so as to prevent a later claim of concealment.

You may be accompanied by someone from Risk Management or by an attorney, but you cannot be seen as mouthing a script laden with legalese and bureaucracy speak. Remember that this is a chance for you to affirm trust in yourself as the physician. If you sound like you are spouting inauthentic talking points or, worse, taking your cues from a non-physician, you will undermine yourself irrevocably.

This scope of what is revealed – which must cover the material facts – is something that you must control.  The patient or family should not be in the lead. In fact, a “don’t ask, don’t tell” approach is more medicolegally risky than no disclosure at all because when a fact that you never mentioned surfaces later your prior conversation will be seen as a deliberately evasive cover-up.

In other words, while you will make accommodations for the educational level, age, and emotional capacity of those you are speaking to, the obligation to control the fullness of the disclosure is yours.

First, briefly review, in layman’s terms, the events that led to the error.  This must not be a defensive overly-explanatory process – that will sound false and will actually trigger suspicion.  It is simply to provide an understandable context: “This is what happened” and “This is why it happened”.

An “information dump” will leave the patient and family wondering if you were just trying to confuse them. Instead, give information in small bites and stop periodically and ask “Do you have any questions?” and, in the end, ask “Is there anything else that I have not mentioned that you would like to know?”

You must then make a personal statement.

As noted earlier, you do not have to use specific words of apology, but most patients and families will expect to hear “I am sorry,” and you must be prepared to deliver it and to be sincere when you do.

The next – and possibly most important step – is assuring them that the matter is now being dealt with, both in their own case and to prevent future errors.

Be careful about your body language as well. Being too casual is obviously to be avoided, but you also want to avoid things like leaning in too much or grasping someone’s hand if they have not offered it because those gestures will come off as false and manipulative.

Finally, document the discussion. 

This leaves only the situation in which you believe that the disclosure will do more harm than good. Non-disclosure in these cases is referred to as “benevolent deception” or “therapeutic privilege”. 

However, this approach, even if sincerely meant for the patient’s good, is simply antithetical to the concepts of patient autonomy and shared decision-making, as well as to the patient’s practical need for health information. 

Situations in which you are concerned that disclosure may have an adverse effect are the ones in which an ethics committee or patient advocate should be brought in to ensure that the disclosure is done properly.  

In summary: Disclosure of your own errors is a duty to your patient and carries several valuable liability-limiting aspects, but it can also put you in an adverse position to those you will need for your defense and so should be entered into only with their cooperation. The scope of the disclosure should include all material facts. The process of disclosure should focus on the patient’s needs.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

Before we dive in, some fast advice. Addressing board complaints alone is a challenge. So, don’t take this on alone. Schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD. We’ve been protecting doctors from medico-legal threats since 2001 – and we’ve seen it all. Dr. Segal is equipped to help you successfully navigate your unique circumstances. Schedule your free consultation below.

Ask doctors what they fear the most and almost all will say being sued for malpractice, but another challenge poses no less a risk to their careers: a complaint to a state medical board.

Filing a complaint requires no more from an aggrieved patient or family member penning their beef and finding a postage stamp or tapping the “Send” button.

Understanding the process and being appropriately insured against a board complaint are vital for any practicing physician.

Let’s deal with the second issue first since it is actually the simpler one.

Most doctors assume that board complaint legal defense is covered by their medical malpractice insurance. That coverage may be functionally very shallow. $50,000 from a rider will be eaten up very quickly. There may also be a shared coverage with a larger group that then reduces coverage available for a malpractice claim.

The first step is to clarify with your carrier exactly what coverage you have and increase your limits if they are inadequate. 

Now, let’s move onto the process, since that is where doctors can often be their own worst enemies.

When a complaint is received by the board it is first screened for jurisdiction and then set a priority for investigation. Complaints that present the possibility of imminent patient harm, such as egregious departures from the standard of care, sexual misconduct and substance abuse receive the most immediate attention and may result in summary license suspension. In most cases, though, the doctor and the complainant will just be notified formally that the matter is in process.

However, unlike litigation, in which the plaintiff is known from the start, the doctor may not even be informed of who the complainant is. Some states, like Georgia and Maryland, still accept anonymous complaints, and even though most states no longer do, they may withhold the complainant’s identity unless there is a hearing. This is based on the public policy that people should feel free to come forward on matters that affect the health of the community, but in a practical sense, it leaves the doctor at a disadvantage unless they recognize who complainant is from the stated facts.

The investigators will then identify individuals and institutions with relevant information and request statements and records. This can be done by subpoena if necessary. HIPAA and state confidentiality laws permit the records to be provided without the patient’s authorization and boards can actually obtain records even if the patient refuses, again on the basis of public health policy. There are exceptions. For example, if the doctor has sensitive psychiatric records and the patient does not want to give their records to the board, the doctor can (and often must) force the board to obtain a judge-signed subpoena and even work to quash that subpoena. That is the exception to the rule, though.

After receipt of documentation, the board conducts its review. This may end the matter for minor or obviously false complaints. For more complicated matters, it may bring in experts. It may hold a hearing, with the presentation of evidence and witnesses. The formal rules of evidence and testimony that apply in a court will not bind the board and the board is not required to share its own information, even if it is exculpatory.

The board may offer a Consent Agreement to the doctor. That permits the doctor to acknowledge malfeasance and accept specified sanctions. Whether or not to accept this offer or request a hearing to present evidence and confront witnesses depends on the strength of the case.

The evidentiary standard that the board will ultimately use is likely to be “preponderance of the evidence.” This standard is often criticized because it is the standard used in civil cases where all that is at stake is monetary damages, while in cases that can affect a doctor’s license, the board, while solely administrative, is still acting in a quasi-criminal capacity. Some states, such as California, Florida, and Illinois, therefore use the higher threshold of “clear and convincing evidence.” No jurisdiction, though, requires “proof beyond a reasonable doubt.”

The board’s final ruling may be an exoneration of the doctor, a letter of concern, a fine, a requirement for corrective action, a license limitation as to certain areas of practice, a license suspension or a license revocation.

Whether a doctor can appeal a board’s decision depends on the state. Courts generally have no inherent appellate jurisdiction over what administrative agencies – which a medical board is – do. However, some states, like California, have created that option through separate statutes.

Rulings in the physician’s favor are not publicized – the entire matter is closed internally and never reaches the public at all. Disciplinary actions, though, will be available through the FSMB Physician Data Center. Patients can access this information through their state’s medical board or through docinfo.org. An adverse board action and any penumbral effects that it has on matters like privileges are also reportable to the National Practitioner Data Bank.

Medical Justice Comments

…so there is a lot at risk here and within an apparently straightforward process there are actually very significant potential pitfalls for a doctor. In Part II, we examine some of those processes with a few sample scenarios.

How a doctor answers a medical board complaint will affect the course of his career – for better or for worse. During such critical junctures, it pays to have the advice of seasoned experts informing your decisions. Medical Justice has developed strategies for responding to medical board complaints professionally and completely – our objective is to guide you towards a favorable outcome.

Dealing with a Board issue? A free consult with Medical Justice can provide peace of mind – and even solutions. Schedule yours below.