When medical malpractice occurs, doctors face an ethical test. Medical ethics require a doctor to be honest with the patient. If the doctor knows that he has made a mistake which injured his patient, is he going to be honest with the patient and tell him the truth or is he going to hide the mistake?
As early as 1847, American Medical Association promulgated a Code of Ethics setting forth the principles of conduct expected of all physicians. Although specific aspects of the Code have changed over the years, the general principle of honest conduct for the benefit of the patient has not. The Code was most recently updated in 2001.
From the Preamble to the Code:
“The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost . . . .”
Among the Principles of the Code:
II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
V. A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.
VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
From Chapter 1:
“The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest.“
From Chapter 2:
“Except in emergency situations in which a patient is incapable of making an informed decision, withholding information without the patient’s knowledge or consent is ethically unacceptable.“
“Disclose medical errors if they have occurred in the patient’s care, in keeping with ethics guidance.”
There is not a lot of wiggle room here. Doctors must place the interests of the patient over their own self-interest. They must be honest in their communications with their patients. They must disclose relevant information. They should disclose medical errors that have occurred in the patient’s care. Doctors profess these ideals and claim to live by them, but they do not.
I have been practicing in the medical malpractice area for over 40 years. I have been representing patients injured by medical negligence for over 35 years. I can count on the fingers of one hand the number of times a doctor told the patient that he or she had made a mistake which caused injury to the patient. It does occur but only rarely and even then almost always in situations where there could be no hiding the mistake. Think operating on the wrong leg or leaving an instrument inside the patient.
Most of the time when there has been an avoidable medical error, the cone of silence will descend. The medical professionals dealing with a patient who has been injured by an error will not usually lie to the patient about what happened, although that does occur. More often than not the injury just goes unaddressed. It is treated as though it was just a bad result or just one of those things that happen in medical care. It will be up to the patient to figure out what happened, although occasionally a nurse with a conscience will whisper to a patient that she or he should talk to a lawyer.
The cone of silence doesn’t just affect the doctors who actually made the mistake that harmed the patient. The cone of silence extends to everyone involved in the care. Many of them will know exactly what has happened and that it was a mistake that injured the patient, but they will keep quiet about it too. The cone of silence even extends to other hospitals and doctors completely unrelated to the care. It is uncommon for a patient to be told that a prior doctor or hospital made a mistake that caused an injury.
From time to time, however, a prospective client will come to me and tell me I should take his case because his new doctor will testify that his old doctor committed malpractice. I have no doubt that the new doctor may have said that, but, at the same time, I know that in all my years of practice I have never had a new doctor who was willing to testify the old doctor committed malpractice. They just won’t do it, medical ethics be damned.
Next time you see some pompous doctor lecturing about medical ethics and asking for some preferential treatment because of how the medical profession puts the public good first, remember it is a crock of B.S.
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