Medical Error Communication in Switzerland

Summary

The issue of medical errors and patient safety has been a central concern to health systems around the world since alarming statistics relating to the frequency, harm, and costs of medical errors were published in the United States in 2000. Subsequent research has made it clear that this is a worldwide issue, with available data suggests that medical errors cause disabling injuries or death to nearly one in ten patients. In recent decades there has been a dramatic change internationally in the approach to medical errors, with a new ethic of transparency replacing the traditional customs of secrecy and denial. It is seen as important that medical errors are reported within the hospital so that opportunities for systems improvements can be identified and addressed. Clinicians are also now widely considered internationally to have an ethical, professional and legal obligation to disclose medical errors to patients. There remains, however, a large communication ‘gap’ between expected practice and what is actually being done, with research indicating that errors are often not reported within hospitals or disclosed to patients. There currently exist a number of important research gaps concerning medical error communication, particularly regarding the disclosure of errors to patients, in Switzerland and internationally.
 
Medical Error Communication in Switzerland

There is currently a shortage of empirical data regarding error communication in Switzerland. The primary aim of this research project was to therefore empirically examine current policy and practice in Switzerland in relation to error communication, with a particular focus on the disclosure of medical errors to patients. This was chiefly achieved through conducting three empirical studies: a quantitative survey of Swiss hospitals, a quantitative survey of Swiss anaesthesiologists, and qualitative interviews with key stakeholders in Switzerland. In addition, data from qualitative interviews conducted with Swiss nurses by a medical master student were used.
 
Quantitative Survey of Swiss Hospitals[1][1]
There is currently no data published on how many Swiss hospitals currently have implemented an internal error disclosure standard. Given that a lack of institutional support can be a significant barrier to error communication, and that organizational standards have been shown internationally to be an important factor in encouraging error disclosure, a quantitative survey of Swiss hospitals was therefore conducted to establish what stage Swiss hospitals are currently at in implementing an internal standard concerning error communication. Responses from a total of 205 hospitals were received, a response rate of 54%. Less than half (46%) of responding hospitals reported currently having an error disclosure standard, 16% reported that they are planning to implement one in the next 12 months, and more than a third (38%) had not implemented an error disclosure standard and had no plans to do so. The majority of responding University and Acute Care (75%) hospitals reported that they had introduced a disclosure standard or were planning to do so. In contrast, the majority of responding Psychiatric, Rehabilitation and Specialty (53%) clinics reported that they had not introduced a standard. The finding that a majority of hospitals were aware of the issue of communicating medical errors and had already taken active steps to establish a culture of dealing with them was promising. Furthermore, the implementation of standards across cultures and languages in Switzerland, a country with an emphasis on decentralisation, shows that changes in the medical system towards more transparency and open communication with patients are being recognised as universally needed. However, Swiss hospitals need to take further actions regarding this issue. The fact that more than one third of the hospitals reported not having an internal standard should be examined further in order to find explanations and identify obstacles that keep those institutions from implementing one.
 
Quantitative Survey of Swiss Anaesthesiologists
Clinicians’ attitudes and experiences in relation to error communication remain poorly understood in Switzerland and little is known about the impact of error involvement on clinicians outside the North America. A quantitative survey of clinically active anaesthesiologists working in Switzerland’s five university hospitals’ departments of anaesthesia was therefore conducted to further knowledge regarding these issues. Responses from a total of 281 anaesthesiologists were received, a response rate of 52%.
 
In relation to error communication,[2][2] virtually all respondents agreed that serious errors should be reported to the hospital, but agreement rates were lower for minor errors (74%) and near misses (59%). Only 63% agreed that current reporting systems are adequate. Strong agreement that serious errors should be reported was more likely if they also thought reports would be used to improve patient safety. While all respondents agreed that serious errors should be disclosed to patients, 23% of respondents disagreed that minor errors should be disclosed. Only 12% had received disclosure training, although 93% wanted training. Willingness to report or disclose medical errors varied strongly between hospitals. Heads of department and hospital chiefs thus need to be aware of how important local culture seems to be when it comes to error communication. Improving feedback on how error reports are being used to improve patient safety and increasing error disclosure training may also be important steps in increasing anaesthesiologists’ communication of errors.
 
Regarding the impact of errors,[3][3] respondents commonly experienced distress following an error, even after a minor error or near miss, with 90% reporting that at least one of the five areas of their lives were negatively affected. Ninety percent disagreed that hospitals adequately support after an error. Nearly all (92%) reported being interested in psychological counselling after a serious error, but many identified barriers to seeking counselling. However, there were significant differences between departments regarding error-related stress levels and attitudes about error-related support. Respondents were more likely to experience certain distress if they were female, older, had previously been involved in a serious error, and were dissatisfied with their last error disclosure. Medical errors, even minor errors and near misses, can have a serious effect on clinicians and healthcare organisations need to do more to support clinicians in coping with the stress associated with medical errors.
 
Qualitative Interviews with Key Stakeholders
This was the first time that key stakeholders have been interviewed in Switzerland to explore their attitudes about medical errors and error communication and their views about what measures could lead to improvements in Switzerland. A total of 23 Swiss key stakeholders were interviewed. Two important themes to emerge from these interviews were the issue of criminal liability and liability insurance.
 
Concerning criminal liability in Switzerland,[4][4] many participants expressed concerns that Switzerland currently has the threshold for criminal liability set too low, and thought that clinicians’ fears about criminal liability were a major barrier to error communication and quality improvement. Participants thought that the option of criminal liability needed to be there for “extreme cases”, but many felt it was inappropriate to be treating clinicians as criminals for making unintentional slips or mistakes that result in harm. A strong case can be made that Switzerland currently has the bar for criminal liability in relation to patient harm set too low. Empirical and theoretical considerations suggest that the use of the criminal law for any medical error, regardless of its outcome, is inappropriate and likely to do more harm than good. The growing international calls for the focus of the criminal law in the context of patient harm to be upgraded and narrowed to wilful and reckless conduct is endorsed. While major changes to Swiss criminal law in the foreseeable future are unlikely, further discussion and research is needed on this issue.
 
In relation to liability insurance in Switzerland,[5][5] participants, particularly those with a legal or quality background, reported that concerns relating to liability insurance are often inhibited communication with patients after a medical error. Healthcare providers were reported to be particularly concerned about losing their liability insurance cover for apologising to harmed patients. It was reported that the attempt to limit the exchange of information and communication could lead to a conflict with patient rights law. Finally, participants reported that hospitals could, and in some case are, moving towards self-insurance approaches, which could increase flexibility regarding error communication. The reported current practice of at least some liability insurance companies in Switzerland of inhibiting communication with harmed patients after an error is concerning and requires further investigation. With a new ethic of transparency regarding medical errors now prevailing internationally, this approach is increasingly being perceived to be misguided. A move away from hospitals relying solely on liability insurance may allow greater transparency after errors. Legalisation that prevents the loss of liability insurance coverage for apologising to harmed patients should also be considered.
 
Qualitative Interviews with Swiss Nurses[6][6]
Nurses are another group of clinicians whose views concerning disclosing errors to patients remain poorly understood in Switzerland and Continental Europe in general. Qualitative interviews were therefore conducted by a medical master student with a total of 18 Swiss nurses. While nurses recognised patients’ right to be informed errors, the majority thought that many errors were concealed from patients in practice. Nurses identified a number of barriers to error disclosure that have already been reported in the literature, such as legal consequences and the fear of losing patients’ trust. However, nurses more frequently reported personal characteristics and a lack of guidance from the organisation as barriers to disclosure. Both of these issues point to a lack of a systematic institutional approach to error disclosure in which the decision to inform the patient should stem from within the organisation and not be shouldered by individual nurses alone.
 
Medical Error Communication Internationally

This research project also includes theoretical research on error communication internationally, due to this author’s background and international collaborations.
 
Error Disclosure in Continental Europe[7][7]
Very little is known about error disclosure practice and policies in Continental Europe. The regulation of error disclosure in Germany was therefore examined. The issue of error disclosure was found to currently play no significant role in German health policy. However, a number of aspects of the wider regulatory framework appear to be supportive and a recent brochure published by the German Coalition for Patient Safety’s appear to be a positive step forward. However, without legal certainty and a broad consistent framework that is supportive of error disclosure, it was argued that it seems unlikely that the attitude and behaviour of clinicians will change towards more transparency and openness. Findings from Germany are also potentially useful for neighbouring civil law countries such as Switzerland and Austria.
 
Apologies and the Law
The law has been used in a number of countries internationally in an attempt to make sure an apology is given to patients after a harming causing error, including “apology laws” which protect apologies from being used a proof of negligence in legal action, and authorities requiring clinicians to apologise to patients after things go wrong. The ethical and legal appropriateness of these uses of the law were examined.
 
In relation to apology laws in Australia,[8][8] the new Australian Open Disclosure Framework now specifies that the words ‘I am sorry’ or ‘we are sorry’ should be included in an apology or expression of regret. All Australian states and territories have apology laws however commentators have recently argued that law reform is needed to provide stronger protections for the contents of open disclosure conversations. It was argued that laws that make compassion inadmissible or that protect truthful expressions of responsibility are unnecessary and operate on ethically shaky ground. Hospitals supporting clinicians through the disclosure process is likely to have a far greater impact.
 
Regarding to apology laws in Canada,[9][9] such laws are now enacted in 8 out of 10 provinces and 2 out of 3 territories in Canada. It remains to be seen whether these laws will achieve their goals of encouraging apologies and open communication and reducing litigation. However, it was argued that they will unlikely lead to substantial improvements in patients’ experiences following an adverse event. Disclosing, and apologizing for, an adverse event is one of the most complex and difficult conversations to have in healthcare. Therefore, without good training and support in this process, apology legislation is unlikely to have much of an impact on the behaviour of health care staff.
 
Concerning forced apologies New Zealand,[10][10] clinicians are commonly required to provide an apology to a complainant by the Health and Disability Commissioner (HDC) in New Zealand. Even though other jurisdictions may not have an authority like the HDC that requires apologies, coercion may be exerted by many parties. Although apology serves several important social roles, it was argued that apologies that stem from external authorities’ edicts rather than an offender’s own self-criticism and moral reflection are inauthentic and contribute to a “moral flabbiness” that stunts the moral development of both individual clinicians and the medical profession. Rather than requiring clinicians to apologise, authorities should instead train, foster, and support the capacity of providers to apologise voluntarily.

Dr Stuart McLennan

Institute for
Biomedical Ethics

Universität Basel
Bernoullistrasse 28
CH-4056 Basel

Tel. +41 61 207 17 86
Fax +41 61 207 17 80