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Ethical Issues in Whistleblowing
Norman Fost, MD, MPH
University of Wisconsin School of Medicine, Madison
JAMA. 2001;286:1079.
Whistleblowing is not an appealing activity. The target of the accusation may suffer, but so can the accuser, even if the accusations are substantiated. At the least, "snitches" may become unpopular. At the worst, they may be ostracized and even driven from their institutions.1 Consequently, physicians often discuss their colleagues' mistakes among themselves, but less so than with patients. There is an emerging literature on the virtues of disclosing one's own mistakes,2-3 but remarkably little on the empirical or ethical aspects of discussing the mistakes of others.4-5 The following justifications (and some responses) for not disclosing others' mistakes are often used:
"Do unto others as you would have them do unto you; treat your colleagues the way you would want to be treated." One problem with the Golden Rule is that it doesn't specify who to fill in for the word "others." Colleagues may prefer that we don't discuss their possible errors, but if "others" refers to patients the conclusion is different. And the claim that loyalty to a colleague, particularly a stranger, exceeds a fiduciary duty to a patient is difficult to defend.
"I don't really know what happened." This may be true, but the purpose of bringing the possibility of an error to a patient's attention is not because a conclusion has been reached, but because there is a reasonable suspicion that an error has been committed. The majority of errors are unknown to the patients.6 Uncertainty can't be a justification for silence. An analogy is the duty to report child abuse: the state does not expect physicians to report completed investigations. That is the responsibility of state agencies. The duty is to report "reasonable suspicion."
"A lawsuit won't bring back a dead person or heal an injury." True enough, and that is one reason the patient may decide not to sue. But lawsuits have other purposes besides restoration of the status quo ante. They may compensate the patient for out-of-pocket expenses; they may deter future errors; they may uncover a pattern of errors. And while they may lead to "defensive medicine," sometimes they lead to better medicine, if the physician was truly negligent and learns from his or her mistakes.
What are the arguments in favor of disclosing to patients possible mistakes made by other medical professionals? There are several ethical obligations involved. First, there is the duty to be truthful to patients. Normal care typically includes a discussion of how the present illness occurred. Failure to discuss another's error as the cause of a patient's condition is to pretend that one has no idea how the patient came to be ill. Silence falsely implies that the physician believes the patient's problem occurred by natural means. This may be a deception. Uncertainty about etiology doesn't preclude a discussion of the possible and likely causes. It is routine to discuss the most likely etiologies, regardless of whether the patient asks for the information.
Second, there is the principle of reparations. When a person causes harm to another, particularly when it results from a negligent action, reparations are owed. Regrettably, in the United States the only effective system for providing such payments is the imperfect tort liability system. It reflects a shared belief in the moral importance of reparations. This is not to say the patient should be encouraged to sue. That is his or her decision. But most patients will have no way of knowing that they may be entitled to reparations if they are not told the likely cause of their condition.
Third, there may be a duty to protect others; namely, the future possible patients who may also be harmed by the wayward physician. This is a matter for hospital boards and state licensing boards. The duty to report possible errors to these agencies is less clear, and the threshold for reporting will usually be more than a single case.
Whistleblowing, of course, should not be equated with disagreements about the best way to manage a problem. The practice of medicine is unavoidably imprecise, and there is hardly a situation in which all informed physicians agree on the best way to proceed. There is a continuum including, at one end, disagreements about different approaches, and at the other end, gross negligence. Reasonable people will disagree about the threshold for beginning such discussions with patients, and there will be disagreement about the precise words to be used. Whether an apparent mistake is due to negligence, and whether a patient is entitled to compensation, is for others to decide. But these questions will usually not be asked if a physician does not alert the patient to the possibility that his or her injury may have been caused by others.
REFERENCES
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1. Howe EG. How should ethics consultants respond when care providers have made or may have made a mistake? Beware of ethical flypaper. In Rubin SB, Zoloth L, eds. Margin of Error: The Ethics of Mistakes in the Practice of Medicine. Hagerstown, Md: University Publishing Group; 2000:165-181.
2. Hilfiker D. Healing the Wounds: A Physician Looks at His Work. New York, NY; Pantheon Books: 1985.
3. Krizek T. Surgical error: ethical issues of adverse events. Arch Surg. 2000;135:1359-1366.
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4. Bosk CL. Forgive and Remember: Managing Medical Failure. Chicago, Ill: University of Chicago Press; 1979.
5. Rubin SB, Zoloth L. Margin of Error: The Inevitability and Ethics of Mistakes in Bioethics and Medicine. Hagerstown, Md: University Publishing Group; 2000.
6. Brennan TA, Leape LL, Laird NM, et al. Incidence of adverse events and negligence in hospitalized patients: results of the Harvard Medical Practice Study. N Engl J Med. 1991;324:370-376.
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