Fear of legal consequences prevent medical professionals from candidly discussing medical errors with patients, an Australian study shows.
Researchers with the University of Melbourne's schools of Law and Population Health set out to assess the attitudes of doctors and nurses engaged in open disclosure (OD) to the legal risks and protections that surround this activity.
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The vast majority of participants rated fears about the medico-legal risks (45/51) and inadequate education and training in OD skills (43/51) as major or moderate barriers to OD. A majority (30/51) of participants viewed qualified privilege laws as having limited or no effect on health professionals' willingness to conduct OD, whereas opinion was divided about the effect of apology laws (state laws protecting expressions of regret from subsequent use in legal proceedings).
In four states and territories (Western Australia, South Australia, Tasmania and the Northern Territory), a majority of participants were unaware that their own jurisdiction had apology laws that applied to OD. The most frequent recommendations for legal reform to improve OD were strengthening existing protections (23), improving education and awareness of applicable laws (11), fundamental reform of the medical negligence system (8), and better alignment of the activities of certain legal actors (eg, coroners) with OD practice (6).
The researchers led byProfessor David Studdert wrote in in the Medical Journal of Australia, " Concerns about both the medicolegal implications of OD and the skills needed to conduct it effectively are prevalent among health professionals at the leading edge of the OD movement in Australia. The ability of current laws to protect against use of this information in legal proceedings is perceived as inadequate."
"When the Australian health ministers introduced a national Open Disclosure Standard in 2003 Australia established itself as a world leader in this area. But our study indicates two key things - there are some holes in the regulatory structure supporting these activities, and clinicians charged with leading this work are concerned about that," said Professor Studdert.
"Health professionals appear worried that if they share information with a patient about problems in care it might be turned back on them in a negligence or disciplinary case. This is unfortunate, especially given emerging evidence that openness about adverse events may actually work the other way and reduce the likelihood that injured patients will take legal action."
Professor Studdert said new laws were needed to prevent information shared in open disclosure from being used in legal proceedings. "We already do this for quality assurance work in hospitals, and this is a natural extension," he said. "It should ease concerns about liability risks and help encourage clinicians and hospitals to embrace this very important activity."
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