Recht auf Irrtum - der siamesische Zwilling der Verpflichtung, einen Fehler einzugestehen

22 May 08    Doctors Who Say They’re Sorry, NYT, Editorial
18 May 08    Doctors Say ‘I’m Sorry’ Before ‘See You in Court’, NYT, By KEVIN SACK
22 March 06    Moussaoui Memo Unseen, Court Told, Washington Post, Jerry Markon et al.
17 March 06    Accounting error raises GM's loss, BBC NEWS
Sep 2004    Le risqué zéro n'existe pas, Pulsations, Yves Grandjean
Sep 2004    Apprendre de ses erreurs, Pulsations, Giuseppe Costa
 

  Les accréditations, certifications et systèmes de vigilance existent. Est-ce suffisant pour garantir la qualité? Non. Une politique de qualité institutionnelle passe par l'investissement de tous: relever les incidents, les mettre en lumière afin qu'ils ne se reproduisent plus est un réflexe que chacun peut adopter. "Il s'agit d'apprendre, au travers des événements signalés, comment combler les lacunes ou pallier les dysfonctionnements constatés. L'événement est davantage ciblé que ses acteurs. Le but recherché est pédagogique. Nous sommes dans la prévention: l'idée n'est pas de sanctionner la faute ou de promouvoir la délation", explique Yves Grandjean, secrétaire général et auteur de la directive incidents/faits graves.

Tous les HUG concernés

  Une directive sur les faits graves concernant les patients et touchant les activités médicales et de soins existe depuis 1997. "Elle était nécessaire pour que l'institution préserve ses droits en cas de plaintes des patients", note Yves Grandjean. La nouvelle directive, adoptée par le comité de direction le 30 mars, s'élargit avec le volet incidents, s'applique à l'ensemble des HUG, englobe toutes les activités conduites au sein des Hôpitaux universitaires et concerne toutes les filières professionnelles (médico-soignante, technique et administrative).

 Elle se fonde sur le plan de management des HUG et s'appuie sur le modèle EFQM (European Foundation for Quality Management), dont l'objectif est de réaliser une excellence permanente.

  Les principes et les modalités de déclaration, d'analyse et de gestion des incidents sont distincts de ceux relatifs aux faits graves. Une distinction qui n'est pourtant pas toujours aisée. "La ligne de partage est déterminée par la gravité. La  conséquence d'une action fait dire où l'on se situe: par exemple la fugue d'un patient tient de l'incident; si, durant sa fugue, il agresse quelqu'un, c'est un fait grave", précise Yves Grandjean.

Formulaire informatisé

  Sur un plan pratique, le rapport peut être établi sur un formulaire disponible dans l'Intranet (sous "Demandes de prestations"), puis imprimé ou manuscrit lisiblement. Tout collaborateur qui constate un événement - qu'il soit directement concerné ou simple observateur - susceptible de constituer un incident ou un fait grave rédige l'avis. Le déclarant peut déclarer de manière anonyme ou nominative un incident; par contre, en cas de fait grave, la déclaration doit être nominative. "S'il s'agit d'un incident, l'avis est adressé au responsable du groupe de recueil et d'analyse des incidents institué dans chaque service.

 S'il s'agit d'un fait grave, il m'est transmis dans les plus brefs délais", détaille le secrétaire général.

  Dans tous les cas, le supérieur hiérarchique immédiat de la personne qui signale un événement doit être avisé pour prendre les mesures correctrices nécessaires. "Les groupes de recueil et d'analyse des incidents (ndlr: la composition est multidisciplinaire et assure une représentation des différents niveaux hiérarchiques) vont étudier les dysfonctionnements, regarder les occurrences et adopter les mesures à prendre dans le temps", ajoute Yves Grandjean. Les incidents remontent ensuite au travers de documents de synthèse anonymisés à la commission départementale, puis à la commission qualité et sécurité qui se réunit tous les trois mois. En ce qui concerne les faits graves, ils sont, quant à eux, centralisés au secrétariat général, puis examinés, sous forme anonyme, à intervalles réguliers, par la commission qualité et sécurité.

  Même si la culture d'entreprise fait que l'on signale davantage qu'auparavant, chacun prenant plus ses responsabilités, Yves Grandjean sait qu'il faudra du temps .pour ancrer la directive: "C'est nouveau, éminemment perfectible et demande une période d'apprentissage".
 

Le risqué zéro n'existe pas

   L'amélioration de la sécurité à l'hôpital mais aussi de la qualité suppose de se donner les moyens, dans les soins comme dans la gestion administrative ou l'exploitation, de recueillir, d'analyser les incidents et les faits graves pour éviter leur répétition.
   Désormais, un processus institutionnel reprend et développe les initiatives médico-soignantes déjà introduites dans plusieurs entités. Généralisé à toutes les activités, il est décentralisé dans les services et les départements au travers de groupes de recueil et d'analyse.
   Un outil simple - un formulaire informatisé - sert aux signalements. La cohérence de l'ensemble et la vision globale requise par la complexité de l'organisation hospitalière sont assurées par la commission qualité et sécurité des HUG, réunissant  toutes les filières concernées.
    Deux mots clés: pédagogie et responsabilité. L'événement est visé plus que ses auteurs, le dysfonctionnement davantage que la faute. Chacun est invité à s'y sentir impliqué, à s'approprier et à agir sur l’amélioration de la qualité et de la sécurité.

The company now says its losses totalled $10.6bn last year, with the additional $2bn caused by errors at a mortgage subsidiary. GM said as a result it was now going to delay filing its 2005 annual report.

The company is also going to restate its results for the years 2000 to 2004 due to the same error. It added that it had further incorrectly accounted for some supplier payments.

Unhappy investors

Analysts said the revelation of accounting errors would be yet another blow to the credibility of a firm that is struggling to turn around its fortunes. "Is this another blow to management? I would say yes," said Kevin Tynan, an analyst with Argus Research. "But you can't say management was on very steady ground in the eyes of investors [in the first place]."

JPMorgan analyst Himanshu Patel said the multitude of accounting errors raised concerns about the company's internal accounting controls.

Detroit-based GM has been cutting both costs and output to cope with falling sales. Earlier this month GM announced plans to raise $2bn through the sale of 17.4% of its stake in Japanese carmaker Suzuki. GM shares slid 4.9% to close at $21.13 on Friday after the latest news.

    A former top FBI counterterrorism official testified yesterday that he never saw an urgent memo sent to his office three weeks before the Sept. 11, 2001, attacks warning that Zacarias Moussaoui was a terrorist intent on hijacking an airplane.
    Defense attorney Edward B. MacMahon Jr. asked the former FBI official whether he knew that agent Harry Samit had warned in an Aug. 18, 2001, memo to his office that Moussaoui was a potential terrorist. "No," Michael E. Rolince answered crisply at Moussaoui's death penalty trial.
    Was he aware that Samit said Moussaoui wanted to hijack a plane and had the weapons to do so? "No," Rolince replied. "What document are you reading?" Samit's report "sent to your office," MacMahon replied.
    Rolince, who at the time was head of the FBI's International Terrorism Operations Section, had been called to the stand by prosecutors to buttress their central argument that if Moussaoui had not lied to FBI agents, the Sept. 11 attacks could have been stopped.
    But a series of rulings by U.S. District Judge Leonie M. Brinkema yesterday prevented Rolince from laying out the steps the FBI would have taken if Moussaoui had told the truth about his intentions.
    When the day concluded, it was clear that Rolince, a retired 31-year FBI veteran who once briefed the White House daily on terror threats -- and wore an American flag tie to court -- might instead have helped bolster the defense of an admitted al-Qaeda operative.
    His testimony appeared to back up the contentions of Samit, a Minneapolis FBI agent, who testified Monday that his bosses took no action on his repeated warnings about Moussaoui after his arrest a month before Sept. 11. The FBI's well-publicized bungling of the case is critical to Moussaoui's defense.
    Moussaoui, 37, pleaded guilty last year to conspiring with al-Qaeda in the attacks on the World Trade Center and the Pentagon. A jury in U.S. District Court in Alexandria will determine whether he lives or dies. Rolince's testimony came as Sen. Charles E. Grassley (R-Iowa) urged the FBI director to explain the actions of another supervisor whose decisions in the Moussaoui case were questioned in court Monday. Samit said in his testimony that he had warned his superiors more than 70 times that Moussaoui was a terrorist and accused them of "criminal negligence" in impeding his efforts.
    Yesterday, Grassley sent a letter to FBI Director Robert S. Mueller III questioning why the main supervisor named by Samit, Michael Maltbie, had been promoted. The letter asked Mueller whether he approved of Maltbie's decision to remove information about Moussaoui's connection to a Chechen group linked to Osama bin Laden from an application for a warrant to search Moussaoui's belongings. The warrant was not obtained until after Sept. 11.
    Special Agent Richard Kolko, an FBI spokesman, said yesterday that the bureau "will respond directly to the senator's office concerning his inquiry." He said the FBI could not comment further because "this is an ongoing trial, and we respect the courtroom procedures." Maltbie, now a supervisory special agent in the FBI's Cleveland office, declined to comment yesterday.
Prosecutors resumed their effort to lay out how Moussaoui's actions before Sept. 11 were similar to those of the 19 hijackers. They showed jurors the videotaped deposition of Hussein al-Attas, who lived with Moussaoui in Oklahoma, where Moussaoui took flying lessons in 2001. Al-Attas said he drove with Moussaoui from Oklahoma to Minnesota, where Moussaoui took lessons on a 747 simulator just before he was arrested Aug. 16, 2001. Before they left, he said, Moussaoui took him to a sporting goods store, where they purchased small knives, binoculars and boots. He said Moussaoui instructed him never to speak Arabic and to change his appearance so as not to arouse suspicion.
    Under cross-examination, al-Attas said he was unaware of Moussaoui's terrorist intentions and denied that he had been asked to participate. Al-Attas pleaded guilty to seven counts of making false statements after he was arrested with Moussaoui in Minnesota. He was sentenced to time already served in jail, is now living outside the United States and did not want to return for the trial, officials said.
    The testimony of Rolince was limited by Brinkema, who said he could discuss only what the FBI could have done if Moussaoui had not lied to agents, not what actions the bureau would have taken. He was then prevented from laying out, as prosecutors wanted, what specific steps agents would have taken if Moussaoui had told them what he later admitted in his guilty plea. Moussaoui said that he was part of an al-Qaeda operation to fly planes into U.S. buildings and that bin Laden had instructed him to attack the White House at another time.
    He has denied involvement in the Sept. 11 attacks.

CHICAGO — In 40 years as a highly regarded cancer surgeon, Dr. Tapas K. Das Gupta had never made a mistake like this.

As with any doctor, there had been occasional errors in diagnosis or judgment. But never, he said, had he opened up a patient and removed the wrong sliver of tissue, in this case a segment of the eighth rib instead of the ninth.

Once an X-ray provided proof in black and white, Dr. Das Gupta, the 74-year-old chairman of surgical oncology at the University of Illinois Medical Center at Chicago, did something that normally would make hospital lawyers cringe: he acknowledged his mistake to his patient’s face, and told her he was deeply sorry.

“After all these years, I cannot give you any excuse whatsoever,” Dr. Das Gupta, now 76, said he told the woman and her husband. “It is just one of those things that occurred. I have to some extent harmed you.”

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.

At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001, said Richard C. Boothman, the medical center’s chief risk officer.

“Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial,” Mr. Boothman said.

Mr. Boothman emphasized that he could not know whether the decline was due to disclosure or safer medicine, or both. But the hospital’s legal defense costs and the money it must set aside to pay claims have each been cut by two-thirds, he said. The time taken to dispose of cases has been halved.

The number of malpractice filings against the University of Illinois has dropped by half since it started its program just over two years ago, said Dr. Timothy B. McDonald, the hospital’s chief safety and risk officer. In the 37 cases where the hospital acknowledged a preventable error and apologized, only one patient has filed suit. Only six settlements have exceeded the hospital’s medical and related expenses.

In Dr. Das Gupta’s case in 2006, the patient retained a lawyer but decided not to sue, and, after a brief negotiation, accepted $74,000 from the hospital, said her lawyer, David J. Pritchard.

“She told me that the doctor was completely candid, completely honest, and so frank that she and her husband — usually the husband wants to pound the guy — that all the anger was gone,” Mr. Pritchard said. “His apology helped get the case settled for a lower amount of money.”

The patient, a young nurse, declined to be interviewed.

Mr. Pritchard said his client netted about $40,000 after paying medical bills and legal expenses. He said she had the rib removed at another hospital and learned it was not cancerous. “You have no idea what a relief that was,” Dr. Das Gupta said.

Some advocates argue that the new disclosure policies may reduce legal claims but bring a greater measure of equity by offering reasonable compensation to every injured patient.

Recent studies have found that one of every 100 hospital patients suffers negligent treatment, and that as many as 98,000 die each year as a result. But studies also show that as few as 30 percent of medical errors are disclosed to patients.

Only a small fraction of injured patients — perhaps 2 percent — press legal claims.

“There is no reason the patient should have to pay the economic consequences for our mistakes,” said Dr. Lucian L. Leape, an authority on patient safety at Harvard, which recently adopted disclosure principles at its hospitals. “But we’re pushing uphill on this. Most doctors don’t really believe that if they’re open and honest with patients they won’t be sued.”

The Joint Commission, which accredits hospitals, and groups like the American Medical Association and the American Hospital Association have adopted standards encouraging disclosure. Guidelines vary, however, and can be vague. While many hospitals have written policies to satisfy accreditation requirements, only a few are pursuing them aggressively, industry officials said.

“We’re still learning the most effective way to have these most difficult conversations,” said Nancy E. Foster, the hospital association’s vice president for quality and patient safety. “It’s a time of high stress for the patient and for the physician. It’s also a time where information is imperfect.”

The policies seem to work best at hospitals that are self-insured and that employ most or all of their staffs, limiting the number of parties at the table. Such is the case at the Veterans Health Administration, which pioneered the practice in the late 1980s at its hospital in Lexington, Ky., and now requires the disclosure of all adverse events, even those that are not obvious.

To give doctors comfort, 34 states have enacted laws making apologies for medical errors inadmissible in court, said Doug Wojcieszak, founder of The Sorry Works! Coalition, a group that advocates for disclosure. Four states have gone further and protected admissions of culpability. Seven require that patients be notified of serious unanticipated outcomes.

Before they became presidential rivals, Senators Hillary Rodham Clinton and Barack Obama, both Democrats, co-sponsored federal legislation in 2005 that would have made apologies inadmissible. The measure died in a committee under Republican control. Mrs. Clinton included the measure in her campaign platform but did not reintroduce it when the Democrats took power in 2007. Her Senate spokesman, Philippe Reines, declined to explain beyond saying that “there are many ways to pursue a proposal.”

The Bush administration plans a major crackdown on medical errors in October, when it starts rejecting Medicare claims for the added expense of treating preventable complications. But David M. Studdert, an authority on patient safety in the United States who teaches at the University of Melbourne in Australia, said the focus on disclosure reflected a lack of progress in reducing medical errors.

“If we can’t prevent these things, then at least we have to be forthright with people when they occur,” Mr. Studdert said.

For the hospitals at the forefront of the disclosure movement, the transition from inerrancy to transparency has meant a profound, if halting, shift in culture.

At the University of Illinois, doctors, nurses and medical students now undergo training in how to respond when things go wrong. A tip line has helped drive a 30 percent increase in staff reporting of irregularities.

Quality improvement committees openly examine cases that once would have vanished into sealed courthouse files. Errors become teaching opportunities rather than badges of shame.

“I think this is the key to patient safety in the country,” Dr. McDonald said. “If you do this with a transparent point of view, you’re more likely to figure out what’s wrong and put processes in place to improve it.”

For instance, he said, a sponge left inside an patient led the hospital to start X-raying patients during and after surgery. Eight objects have been found, one of them an electrode that dislodged from a baby’s scalp during a Caesarian section in 2006.

The mother, Maria Del Rosario Valdez, said she was not happy that a second operation was required to retrieve the wire but recognized the error had been accidental. She rejected her sister’s advice to call a lawyer, saying that she did not want the bother and that her injuries were not that severe.

Ms. Valdez said she was gratified that the hospital quickly acknowledged its mistake, corrected it without charge and later improved procedures for keeping track of electrodes. “They took the time to explain it and to tell me they were sorry,” she said. “I felt good that they were taking care of what they had done.”

There also has been an attitudinal shift among plaintiff’s lawyers who recognize that injured clients benefit when they are compensated quickly, even if for less. That is particularly true now that most states have placed limits on non-economic damages.

In Michigan, trial lawyers have come to understand that Mr. Boothman will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate.

“The filing of a lawsuit at the University of Michigan is now the last option, whereas with other hospitals it tends to be the first and only option,” said Norman D. Tucker, a trial lawyer in Southfield, Mich. “We might give cases a second look before filing because if it’s not going to settle quickly, tighten up your cinch. It’s probably going to be a long ride.”

The willingness of doctors at several major medical centers to apologize to patients for harmful errors is a promising step toward improving the quality of a medical system that kills tens of thousands of patients a year inadvertently.

For years, experts have lamented that medical malpractice litigation is an inefficient way to deter lethal or damaging medical errors. Most victims of malpractice never sue, and there is some evidence that many patients who do sue were not harmed by a physician’s error but instead suffered an adverse medical outcome that could not have been prevented. The details of what went wrong are often kept secret as part of a settlement agreement.

What is needed, many specialists agree, is a system that quickly brings an error to light so that further errors can be headed off and that compensates victims promptly and fairly. Many doctors, unfortunately, have been afraid that admitting and describing their errors would only invite a costly lawsuit.

Now, as described by Kevin Sack in The Times, a handful of prominent academic medical centers have adopted a new policy of promptly disclosing errors, offering earnest apologies and providing fair compensation. It appears to satisfy many patients, reduce legal costs and the litigation burden and, in some instances, helps reduce malpractice premiums.

At the University of Illinois, for example, of 37 cases where the hospital acknowledged a preventable error and apologized, only one patient filed suit. At the University of Michigan Health System, existing claims and lawsuits dropped from 262 in August 2001 to 83 in August 2007, and legal costs fell by two-thirds.

To encourage greater candor, more than 30 states have enacted laws making apologies for medical errors inadmissible in court. That sounds like a sensible step that should be adopted by other states or become federal law. Such laws could help bring more errors to light. Patients who have been harmed by negligent doctors can still sue for malpractice, using other evidence to make their case.

Admitting errors is only the first step toward reforming the health care system so that far fewer mistakes are made. But reforms can be more effective if doctors are candid about how they went astray. Patients seem far less angry when they receive an honest explanation, an apology and prompt, fair compensation for the harm they have suffered.