For the first time, organizations that represent medical institutions are developing policies to bring an end to medical secrecy in Canada, eventually making disclosing medical errors a routine part of medical care.
Ontario leads the way, with changes to legislation moving through the Legislature that will make the records of all health professionals available to the public.
Patients will be able find out if a physician is under investigation, has been accused of medical malpractice or professional negligence, and whether disciplinary action has been taken against a care provider or limits placed on a physician's licence.
Health professionals found guilty of an offence will be obliged to report findings against them; their respective health regulatory colleges will then make any subsequent findings of misconduct public on their websites.
A single committee will be formed to address patient concerns rather than the current system in which complaints are channeled to a variety of committees. In addition, starting July 1 2008, hospitals will be required to report adverse events—hospital lingo for medical errors¬—to patients.
With one in 13 acute care patients in Canada affected in some way by medical errors, disclosure is an idea whose time has come, says Phil Hassen, CEO of the Canadian Patient Safety Institute (CPSI), an NGO formed in 2003 to promote safe medical practices.
While all provinces already have some requirements for reporting mistakes, the CPSI is in the process of developing national guidelines for disclosing medical errors.
"Everyone makes mistakes, that's because we're human," says Hassen. "The goal is to get adverse events open so we can understand them and improve upon what has caused those misadventures."
Amani Oakley, a Toronto-based lawyer who specializes in medical malpractice, says the legislation changes don't go far enough for many reasons, one of which is the fact that individual physicians' complication rates won't be made public.
Oakley points out that the doctors lobby is a powerful, well-heeled group that makes constant submissions to the government, while patients are scattered and don't have a strong group to back them in a "single voice."
"It's much easier to be swayed by the doctor's lobby than it is to use common sense and realize that if you don't put out the complication rates of individual physicians it's a meaningless exercise."
Oakley represents a number of women who claim they were victims of negligence after undergoing surgery by Dr. Richard Austin, a Scarborough gynecologist. The women were left with a variety of complications, including perforated bowels and bladders and damaged abdominal structures.
More than 60 women in all have contacted Oakley, alleging medical errors by Austin. Four cases are currently before the courts. A judge found Austin guilty of battery in the early 1990s after he removed a woman's ovary without consent.
Up to 23,750 people die in Canada each year as a result of hospital adverse events, according to the Canadian Institute for Health Information. Some adverse events do not result in harm to patients, either by chance or because they were caught in time; these are known as near misses.
Hassen is mulling the idea of anonymous reporting of mistakes and near misses, a system adopted by the airline industry 20 years ago with great success.
"In 80 per cent of the cases where there was an accident or a near miss, that 80 per cent of the time, someone knew something that would have helped mitigate against that accident. It's pretty remarkable. The same thing has to happen in the medical community."
Right now, says Hassen, there's "a lot of impetus to not openly declare when misadventures occurred" because of the negative consequences associated with disclosure. Historically, the prime reason for medical secrecy has been fear of medical malpractice lawsuits.
But Dr. Steve Kramen, a professor of medicine at the University of Kentucky, found that honesty and openness worked better than secrecy when he was chief of staff at the veterans Affairs Medical Center in Lexington, Kentucky, in the latter part of the 1980s.
In trying to find a way to protect the hospital from lawsuits, Kramen and his colleagues began to carefully observe goings-on at the hospital. After discovering that a female patient had been killed by a medical error, they decided to inform the woman's family rather than keeping it quiet.
The patient's relatives were advised that they were due compensation, a compensation package was negotiated with their attorney, and the whole case was dealt with in a matter of weeks, at a fraction of the cost of a lawsuit.
"It worked so well that we decided that was the way these things should be handled and we started doing it consistently after that. Over twenty years later the hospital is still doing it," says Kramen, who subsequently authored a study about disclosure called "Extreme honesty may be the best policy."
While anonymous disclosure of hospital errors is in place in many U.S. states, Kramen doesn't think it's effective in preventing lawsuits or benefiting patients because "if you're doing it anonymously you're not taking responsibility at all—you're trying to cover your own rear end instead of worrying about the victim of the error."
Wendy Levinson, chair and professor of medicine at the department of medicine at the University of Toronto, says in an article published in the July 31 issue of the Canadian Medical Association Journal that disclosing errors to patients is challenging for both physicians and hospitals.
Since most physicians have never been trained in "what to say and how to say it" when admitting an error, educational programs and training are needed to teach them how to conduct an effective disclosure conversation, wrote Levinson.
"Research indicates that patients want to understand what happened and the implications for their care, and they want to receive a genuine apology from the physician."
Legal requirements for disclosure of adverse events are being created across the country, with Quebec and Manitoba recently passing legislation requiring that patients be informed of mistakes made during their care. Similar changes are taking place in the U.S., and many states are now adopting "apology laws."
British Columbia recently passed an apology law, which means an apology made for a medical error is inadmissible in court for the purposes of proving liability.
The changes in Ontario won't make a difference in the case against Austin, says Oakley, because the college will only look at the complaints on a case by case basis, with the result that the similarities in the cases are not immediately apparent. A request to have all the complaints reviewed at once was rejected by the college, she says.
"If you can't catch a physician who has a long track record like this, what's the likelihood of finding a doctor who's careless once in a while? In cases like this, we will have to fight for years."
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