Do Doctors Have to Disclose Medical Error?

Everybody makes mistakes, including mistakes at work. But when the job in question is being a medical doctor, those mistakes may be more serious than those of most people—they may even be life-threatening. Are doctors obligated to disclose mistakes they make on the job?

The answer is yes—sometimes. In this article, we will talk about what constitutes a medical error, what your doctor has to tell you about an error they have made, and what you can do to learn about your doctor’s history of medical mistakes. Lastly, we will discuss what to do if you have been injured by a mistake your doctor made.

What is a Medical Error?

The American Medical Association (AMA) has a Code of Medical Ethics (“the Code”) that defines medical error. According to the Code, a medical error is “an unintended act or omission, or a flawed system or plan, that harms, or has the potential to harm, a patient.” In many cases, a medical error may constitute medical malpractice.

When Does a Doctor Have to Reveal a Mistake?

The Code requires physicians who have made or been involved in a medical error, or even a potential error, to disclose it to the patient. Doctors are ethically obligated to:

• Advise the patient that the error or possible error occurred;
• Explain to the patient the nature of the harm that was caused or may have been caused by the error;
• Give the patient any information they need to make informed choices regarding their future care and treatment;
• Acknowledge the error, and “express professional and compassionate concern” toward those who have been harmed in the health care context;
• Explain to the patient what measures are being taken to prevent similar occurrences of medical error in the future.

Doctors are still obligated to make disclosures of error even if having this knowledge will not change the patient’s care options or recommended treatment. The duty of disclosure springs from a physician’s ethical obligation to be honest with patients, since open communication is the foundation of trust in the physician-patient relationship.

In other words, if a doctor is involved in a medical error or possible error, they have to tell the patient whose health might have been affected. That’s true even if the patient appears to have suffered no ill effects from the error. It is also true even if the physician fears that making the disclosure will prompt the patient to take legal action against them. Physician honesty serves not only to protect patient health, but to preserve the trust patients have in their medical care providers and in the profession

When Does a Doctor Not Have to Disclose a Mistake?

While your doctor has to disclose any mistakes they made in your care, they are not required to spontaneously tell you about every mistake they have made in any patient’s care. However, if you are concerned about your doctor’s possible history of medical error for any reason, you can ask them some questions:

• Have you ever made a mistake that could have negatively affected a patient’s care? What was the outcome?
• What safeguards have you put in place to ensure you don’t make a similar mistake with another patient?
• What can you do to help me be confident that you will not make a mistake in my care?
• Have you ever been sued for malpractice? What was the outcome of the case?
• Have any complaints ever been filed against you with a medical licensing board? What happened? Am I able to review those complaints?

You may feel uncomfortable asking these pointed questions of your doctor, especially given the limited time you may have with them to discuss your actual medical concerns. If that’s the case, or if your doctor is less than forthcoming, you have other options for learning about your doctor’s past.

No matter what state you live in, you can search for your doctor’s disciplinary history through the Federation of State Medical Boards’ DocInfo database. A minority of states also participate in Administrators in Medicine’s DocFinder; Oregon is one of them.

What Should You Do if Your Doctor Discloses a Medical Mistake?

If your doctor has revealed that a mistake was made in your care, you may be feeling many things: shock, anger, anxiety, fear. You may even feel gratitude for your doctor’s honesty about the mistake. Depending on how serious the mistake was, you might also be wondering if you should take legal action against your doctor.

Not every medical mistake constitutes medical malpractice; if your doctor’s mistake did not actually harm you, for instance, you may not have any damages for which to sue. However, many medical errors do rise to the level of medical malpractice. If you are not sure of whether you have a claim, you should still speak with an experienced medical malpractice attorney. If you do have a viable claim, a malpractice attorney can discuss your options with you. If you delay too long in speaking to an attorney, any potential claim could be barred by the statute of limitations, making it impossible for you to recover financial damages for your injury.

To learn more about doctors’ obligations to disclose medical error, or what to do if you have been injured while receiving medical care, contact The Fraser Law Firm P.C. to schedule a consultation.