Legal and Ethical Accountability for Nursing Errors: Disclosure and Apology

Sunday, 30 July 2017: 8:30 AM

Susan J. Westrick, JD
Department of Nursing, Southern Connecticut State University, New Haven, CT, USA

Purpose - The purpose of this session is to review the legal and ethical evidence bases for accountable disclosure of errors and apology by nurses, and to provide guidance on best practices for these disclosures.

Error disclosure and apology are evolving concerns for nurses who have increased exposure to liability. The Institute of Medicine (IOM) report To Err is Human brought national attention in the United States to the problem of medical errors and preventable injuries that occur every day (Institute of Medicine, 1999). According to this report, it is estimated that 98,000 patient deaths per year can be attributed to preventable medical errors, raising concerns about patient safety. One of the tenets of communication and patient safety is the ethical obligation to promptly disclose medical errors. Transparency is an integral component of providing safe and accountable care and a critical element of transparency is disclosure of harmful errors. This practice has been recommended by United States (U.S.) accrediting organizations and professional bodies. In 2001, the Joint Commission on Accreditation of Healthcare Organization (now called The Joint Commission) issued the first nationwide disclosure standards, requiring patients to be informed of all unanticipated outcomes of care (Weiss & Koch, 2012). In 2006, the National Quality Forum endorsed a new safe practice guideline on the disclosure of serious unanticipated outcomes to patients. Although these guidelines are not legal mandates, the recommendations of these well -known health care organizations comprise professional standards that could be used as evidence in malpractice cases or other legal challenges in the U.S.

In the United Kingdom (U.K.) there is a new law and guidelines for National Health Service (NHS) doctors and nurses that requires them to apologize to patients for mistakes (Merrifield, 2015). These guidelines, issued by the General Medical Council and Midwifery call for a “duty of candor” in disclosing medical errors. The International Council of Nurses (ICN) Code of Ethics for Nurses (2012) and the American Nurses Association (ANA) Code of Ethics for Nurses (2015) provide further support for error disclosure practices.

Yet even with these mandates and guidelines, barriers to disclosure exist, and error disclosure has been a subject of debate by healthcare professionals. Errors threaten a practitioner’s competency, adequacy, and self –esteem and may lead to employer or professional discipline (Westrick, 2014). Nurses also may not be aware of U.S. state apology statutes (laws) that protect some statements from use in civil lawsuits for negligence or malpractice. Two law cases involving physicians that apply apology laws are reviewed to illustrate these protections (Airasian, 2008; Davis, 2011). Nurses would be similarly protected as “health care practitioners” under the wording of the statutes applied in both cases.

Successful error disclosure programs in the U.S. and best practices for error disclosure such as the “Michigan Model” (Kalachalia, Kaufman & Boothman (2010) have made a difference in reducing liability claims. The Sorry Works! Coalition was formed in 2005 as an advocacy group that promotes apology for medical errors and fair compensation when appropriate to patients and families (http:/ website provides training materials and toolkits to assist practitioners and organizations in the apology process. Additionally nurse educators are urged to include error disclosure content in nursing curricula as part of safety and quality education, since this is typically not a part of undergraduate or graduate courses for advanced practice nurses (Westrick & Jacob, 2016). Nurses continue to need support and guidance for specific aspects of error disclosure and apology to patients (Meyers, 2011).