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Autumn 2006

   After Harm
    Medical Error and the Ethics of Forgiveness
    By Nancy Berlinger
    Johns Hopkins University Press, Baltimore, 156 pp. (with notes and index), 2005.

   After Harm can be said to be constructed around three familiar aphorisms: the Hippocratic "first do no
   harm"; "to err is human"; and "confession is good for the soul." Perhaps the latter should specify the soul
   of the patient (or patient's family) that has been harmed by medical error. But the soul and mental
   condition of the doctor who has made a mistake benefits as well. However, in our litigious, tort-based
   system of redress for harm, these are often forgotten or intentionally ignored.

   The Institute of Medicine's recent report tells us that as many as 96,000 deaths occur in the United
   States each year due to medical error. This extraordinary toll is being addressed by additional
   technology, further physician and nursing education, setting up "checks and balances" systems
   in hospital procedures and other proposed solutions. These have been the subject of several of the
   books reviewed previously on this site. This book addresses solutions to the aftermath of medical
   harm: how to assuage an angry and suffering patient or a grieving family and how to ameliorate
   the frustration, guilt and bewildering effects of the error on the physician and convert it into a
   learning experience, for the physician himself and for his colleagues.

   This approach, admission of error and methods to assure it will not happen again, is essentially the
   point of morbidity and mortality conferences carried out in most hospitals and clinics. Yet these peer
   reviews are usually held in secret and information from them is not available for public disclosure
   or even legal discovery. Perhaps they should be made public, similar to the truth and reconciliation
   commissions evaluating war and genocidal crimes in South Africa and elsewhere. But the adversarial
   tort system leads to a defensive attitude by the health professional and often rationalization or denial
   of mistakes. Still, it is an effective mechanism for providing evidentiary basis for a real error and
   degree of harm. Experts can disagree in good faith on these matters even when they are not
   compensated for a favorable opinion. yet some errors are so egregious (e.g. amputating the wrong
   extremity, puncturing a blood vessel that leads to exsanguination) that they fall into the legal res
   ipsa loquitor category.

   The author, a deputy director and associate for religious studies at The Hastings Center, suggests an
   approach grounded in fundamental principles of ethics and religious traditions. A personal written
   narrative  of the error by either the one harmed or by the physician who committed the error is such
   a principle. She points out the learning value of such narratives and cites recent works by Atul Gawande
   (a surgeon) and Danielle Ofri (an internist) that illustrate the point. The former deals with a botched
   emergency tracheotomy and the latter with the failure to read an x-ray report that might have saved a
   dying patient. This sort of thing happens to nearly every doctor over the course of a practice lifetime.
   It usually haunts, leading to sleeplessness, feelings of guilt, depression and temporary loss of the self-
   confidence so necessary for effective doctoring. Fear of a malpractice suit and its shaming result often
   over-rides any consideration of confession and apology. Too often the doctor will not even discuss
   the real facts with the patient or his family. Mistakes or complications happen, the fearful physician
   rationalizes.
   
   Patient and family narratives comprise a chapter. Many of these document the physician or surgeon's
   reluctance to admit to personal error; the passive voice ("mistakes were made") often dominates. Yet
   the author points out the relatively few people sue, only about 2 %. She provides several illustrative
   examples: one in which post-operative bleeding was missed for several hours and the patient died;
   another resulting in the loss of a hand due to improper arterial catheterization.

   Another chapter is devoted to the nature of disclosure, that is "truth telling." To tell the truth about a
   mistake has been part of the AMA code of ethics since 1981 regardless of legal liability. Too often the
   physician resorts to euphemisms such as "complications occurred" or the patient was "non-compliant."
   The author describes the obligation to tell the truth from the standpoint of Dietrich Bonhoeffer's famous
   analysis of Kant's essay on The Supposed Right to Lie for Altruistic Motives, written while Bonhoeffer
   was a prisoner of the Nazis for alleged participation in the plot against Hitler.

   The author devotes a chapter to apology and an exploration of "I'm sorry" emphasizing the distinction
   between sympathy for harm and admission of responsibility. Several states have passed laws offering
   some protection from legal liability if the "I'm sorry, my fault" admission is used. She points out the not
   all medical harm, however, is related to negligence. The usual tri-partite standard for proof of
   medical malpractice, followed in most judicial districts, is that of negligence (departure from the
   common standard of care), damages (harm to the patient) and a direct link that the negligence led
   to the harm (causation). Non-negligent harm is usually called "bad outcome" or "complications" and is
   often the source of so-called frivolous lawsuits. It is in these latter cases perhaps that a full
   explanation of the circumstances of the medical misadventure and a regretful "I'm sorry" may be most
   beneficial.

   The role of apology and compensation for the injured party is dissected by the author. She correctly
   points out that the tort system is poorly designed to compensate for medical error and that much
   patient harm is not due to negligence but remains within the standard of care. Many articles have
   recently appeared counseling apology as a way of avoiding lawsuits. Yet even if this is not successful
   the author suggests that a meaningful apology should be made as a form of repentance despite the
   potential legal liability.

   This is a thought provoking book about a current topic that seems to have exploded into the public
   domain, derived from the widespread publicity of the Institute of Medicine's report and the promulgation
   of harm done by hormone replacement therapy, Vioxx, the diet pills and other drugs and medical
   devices and procedures. Congress' attempts to limit lawsuits by so-called tort reform has invoked a
   bitter battle between trial lawyers and consumers on one side and business interests and physicians
   groups on the other. Still, doctors are no longer perceived as oracles and much medical information
   is available to the public via the internet. So until a better compensation system for injured patients
   can be worked out to the satisfaction of all parties, perhaps a meaningful "I'm sorry" will help somewhat.
  
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