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Truth Telling, Nondisclosure, and
Disclosing Medical Error:
Bad Outcomes vs. Bad Work
Three angles:
 Telling the truth to our patients
about their condition.
 Informing our patients when we
commit medical errors.
 The distinction between bad
outcomes and bad work. Also, the
problem of what do to when we
discover bad work on the part of a
dental colleague.
Telling the Truth to Patients
Consider the case from last time when
the dentist discovered the lesion on the
patient’s tongue. He informed the patient
that this was generally symptomatic of
an autoimmune deficiency. Should he
have gone that far? The patient
immediately inferred that the dentist was
talking about AIDS. The dentist went so
far as to tell him that it was LIKELY to
be HIV related. We didn’t question that
last time, but I want to now. Should he
have told the truth to that degree?
The traditional argument regarding
disclosure:
 Departures from the general
principle of truth telling are justified
when information disclosure itself
carries serious risks for patients.
 Truth telling is limited by the
more ultimate principle of
nonmaleficence. If disclosing the
truth will ultimately harm the patient,
then the practitioner is justified in
withholding that truth.
 It is held that when the risk from
nondisclosure is small, and the risk
from disclosure is large, then we
should withhold.
 Those who hold this position will
distinguish between our duties not to
lie or deceive (which is one thing)
with the duty to disclose (which is
another).
But, most will argue today that there is a
strong duty of veracity in medicine due
to the more recent emphasis on
autonomy, of respect for persons. Can
we reconcile our duty to veracity with
justified nondisclosure? Not an easy
question.
Why should doctors tell patients the
truth?
 Respect for persons demands it.
Kantian considerations.
 It allows for proper decision
making. Utility considerations.
 It’s a kindness to be told the truth.
Virtue considerations.
Clearly when we are incapacitated (no
longer autonomous) then the truth isn’t
necessary—we can’t act! We might call
this “necessary paternalism.” Among
autonomous people, there could be times
that other principles will outweigh the
prima facie principle of veracity-“temporary trump cards.”
The goal of all healthcare: to
receive/provide help for an
illness/condition such that no further
harm comes to the patient, especially in
that patient’s vulnerable state. The
vulnerable person, who has come to your
for help, should be assisted back to a
state of human equality, if possible, free
of that dependency. Dependency
compromises autonomy. Thus:
 The goal of the relation between
the healthcare giver and the patient is
essentially to restore the patient’s
autonomy. Respect for the patient’s
right to truth is measured against this
goal. Tell if it helps, withhold if it
hinders.
 Interventionist healthcare
relationships are generally temporary
and require a greater degree of
veracity than long term relationships.
Compassion is more likely to grow
out of the long term relation, and
compassion may require temporary
withholding of information.
 The goal of healthcare is the
treatment of an illness or condition.
An illness is broader than a disease,
as it can include the whole person.
Helping someone through an illness
is a greater task than simply treating a
disease or condition. Again, that may
require the withholding of certain
information.
Telling the Truth to Patients with
Cancer: What is the Truth?
Antonella Surbone
Traditionally, beneficence ruled. Doctors
made what they judged to be the best
medical choices in their patients’
interests and would withhold the truth at
their discretion. As we have seen, that
model is outdated. This model, she
argues, is misleading—it assumes a
symmetrical relationship, but the doctorpatient relationship is a “dynamic
asymmetrical relation of help involving
individuals with unequal knowledge and
power. The patient is vulnerable, and this
vulnerability enhances their dependence
on other people.”
An illness is not justly described by
merely transcribing the facts. There are
subjective, relational aspects (e.g.
interactions between the affected
individual, the doctor, and family, and
social context and environmental
variables during the course of the
disease) that must be taken into account
as well. When doctors don’t take these
factors into account, “they present the
illness as a set of biomedical facts, and
[thus] truth-telling becomes a one-way
act of information provided by the
doctor.” Such a narrow view perpetuates
the dominant role of clinicians over their
patients, since only the doctor knows the
truth and the doctor decides when and
how to tell it to their patients. That is,
they deliver the information rather than
share it.
Surbone suggests a different model. The
relationship between a doctor and a
patient should be recognized as an openended dynamic process of ascertainment
and constant reassessment of a truth
shared between them. The relationship
thereby acquires a different strength and
character. Truth-telling becomes a bidirectional process aiming at
constructing—rather than merely
discovering—the truth.
Ethical theory is ambiguous on the point:
deontology (autonomy)—tell the truth!
Consequentialism (beneficence)—do
what is best for the patient! Our culture
has a bias towards autonomy, but, as the
article points out, others disagree,
preferring withholding information to
prevent further suffering. Surbone
suggests that truth is NOT a “static
object that awaits the neutral discovery
of the doctor who then tells it to the
patient. On the contrary, the truth of the
patient’s illness is the result of different
subjective and objective relational
components, evolving and changing over
time, that are mutually shared by the
patient and the doctor during the course
of their relationship. Truth-telling is,
therefore, a dynamic, iterative, and
interactive process that takes place
between the [doctor] and the patient,
sharing many provisional truths in view
of a common therapeutic goal” (63).
Contrast: the traditional view of
autonomy implies that competent
individuals are judged capable of making
decisions about health-care because they
are assumed to possess all necessary
means and information to be able to
understand the choose between their
options. The relational view of
autonomy, on the other hand, pays
special attention to the internal factors of
mental capacity, stress, various levels of
understanding of medical information,
and different subjective dispositions to
sharing decision-making about their
health care. Conclude with the final
paragraph on page 65.
Medical Errors and Disclosure
To err is human. In medical/dental
practice, mistakes are common,
expected, and understandable. When do
we tell?
What is a mistake? Two definitions
 A commission or an omission
with potentially negative
consequences for the patient that
would have been judged wrong by
skilled and knowledgeable peers at
the time it occurred, independent of
whether there were any negative
consequences.
 Or from the Institute of Medicine:
Failure of a planned action to be
completed as intended, or the use of a
wrong plan to achieve an aim.
We distinguish between systemic errors,
for which the doctor may share
responsibility, and individual errors, for
which the practitioner has primary
responsibility.
We also distinguish between errors that
are remedial (the damage can be
repaired) and those that are not (as a
result, the tooth must be extracted). The
authors argue that disclosure is an
obligation for any cases of significant
harm, and that it is rarely excusable not
to disclose. Those cases are limited to
cases in which, in the good judgment of
the practitioner, disclosure would
undermine the patient’s autonomy in
some way.
Consequentialist considerations:
Potential Benefits to the Patient
 Disclosure is essential to future
informed consent. The uninformed
patient may be at risk of future
misdiagnosis.
 The uninformed patient may
worry needlessly about the potential
side effects of a medical mistake.
 Knowing about the mistake may
allow the patient to obtain
compensation for lost wages or to pay
for needed follow up care.
 Disclosure promotes trust in
medical practitioners.
Potential Harms to the Patient
 May destroy the patient’s faith in
the medical profession
 May cause stress and anxiety
 The disclosure of inconsequential
mistakes may cause unwelcome
confusion. Some patients may feel as
if they would have been better off not
knowing.
Potential Benefits to the Doctor
 The practitioner may be relieved
getting the mistake “off my chest.”
 In a serious mistake, the patient or
a family member may be the only
ones able to forgive the mistake.
 Many patients appreciate honesty
on the part of the doctor.
 Candid disclosure may (and has
been shown to!) decrease the
likelihood of legal liability.
 Disclosing mistakes can help us
learn and improve our practices.
Potential Harms to the Doctor
 It hurts to admit a mistake.
Admitting a mistake may expose one
to a legal suit.
 Disclosure may result in loss of
referrals, preferred provider status,
etc.
Duty considerations:
This one is relatively simple. The
fiduciary relationship between doctor
and patient demands disclosure. All of
the principles point to it. If the patient is
harmed, the patient has a right to know it
so that the patient can make an informed
decision about the appropriate course of
action. Remember nonmaleficence: first,
do no harm. A caregiver has a grave
responsibility to avoid harming the
patient. This principle and
professionalism enjoin the doctor to act
for the best interests of the patient,
EVEN IF the doctor’s own professional
or financial well-being is not benefitted
by so acting. Remember autonomy:
disclosure is necessary to preserve
patient autonomy.
Practical Issues in Disclosure
 Deciding whether to disclose:
who should decide? Probably not the
individual who made the mistake. Get
a second opinion.
 Timing of disclosure: make sure
the patient is stable enough to handle
the disclosure.
 Who should disclose? In the case
of dentist, generally the dentist
her/him self.
 Incompetent patients: Depending
upon the degree of competence, one
of diminished competence can still
appreciate an apology. As would the
family.
Evidence is becoming strong that
disclosing mistakes actually reduces the
risk of litigation. Imagine the mistake
coming to light later. That is when the
possibility of litigation becomes very
real.
Part III: Bad Work or Bad Outcomes?
First, we want to make a clear
distinction between bad outcomes and
bad work. The former is a possibility in
any dental procedure. There are quite
simply too many factors involved in this
process to claim that any bad outcome is
the result of bad work. Some teeth
simply cannot be saved! Any practicing
dentist will tell you this.
Let’s imagine that you are an
endodontist and you have a referral for a
root canal. You notice that the work done
on the patient doesn’t look so good.
Consider the three possibilities:
1) You judge that this bad outcome is not
the product of bad work.
2) The question of bad work cannot be
resolved with the available evidence or
from the patient’s reports.
3) On the basis of the evidence, this is
clearly a case of bad work. What do you
do?
First duty: The ADA principles
clearly state that you are obligated in all
of the circumstances to inform the
patient of his or her “present oral health
status” (4-C). Doesn’t this require that
we divulge that the patient has a “bad
outcome”? Notice the complexity of this
situation: You do have co-professional
obligations to the first dentist, but you
also have obligations with the patient—
he or she is now your patient also. Which
comes first, your obligation to your
colleagues or your obligation to the
profession as a self-regulating profession
and to society as a professional? What do
you tell the patient about the first
dentist? Do you report to the state
regulating board?
E. H. Morreim identified five levels
of adverse outcomes to separate ordinary
mishaps from real mistakes indicating
incompetence.
1) It’s an accident, an event totally out of
control of the dentist, perhaps the result
of an equipment failure.
2) The dentist makes a well-justified
decision that turns out badly, as in the
case where a patient requiring an
antibiotic, who has no known allergies,
but suffers an anaphylactic reaction.
3) This one occurs when there are
disagreements about treatment options, a
common problem for dentistry. The
ADA Code recognizes this: “A
difference of opinion as to preferred
treatment should not be communicated to
the patient in a manner which would
unjustly imply mistreatment” (4.C.1).
4) Here, the dentist exercises poor,
though not outrageously bad, judgment
or skill. The concern at this level is not
the single error, but rather a pattern of
errors (as we will see in one of our
cases).
5) These are outrageous violations, such
as the dentist performing unnecessary
treatment, performs surgery on the
wrong site, threatens the life of a patient.
The ADA describes these violations as
“gross” violations.