MMHA 6205 Week 10 Error Disclosure Analysis Example

A Retained Sponge, a Second Operation and a Risk Manager's Hesitation: Why Full Disclosure Is the Lawful and Right Response, and What the Conversation Should Contain

Student Name

Walden University

MMHA 6205: Health Law and Ethics

Instructor Name

Month Day, Year

A Retained Sponge, a Second Operation and a Risk Manager's Hesitation: Why Full Disclosure Is the Lawful and Right Response, and What the Conversation Should Contain

Event Summary

A 58-year-old woman underwent an open abdominal operation to remove part of her colon. On the second day after surgery, an X-ray ordered for an unrelated reason showed a surgical sponge in her abdomen. The surgical count at the end of the case had been recorded as correct. She was returned to the operating room the same day, the sponge was removed through the original incision, and she recovered without infection, although her hospital stay was extended by three days and she faced a second anesthetic and operation. The error type is a retained surgical item; the harm is moderate and temporary; the recovery is complete. The surgical service and its staff are composites, and no individual is identified as at fault, since the review of how the count failed has not yet been done.

The surgeon wants to tell the patient everything, including that the sponge was left by mistake. The hospital's risk manager has asked that the conversation be limited to "an unexpected finding that required a second procedure," out of concern that a fuller statement will invite a lawsuit.

Legal Analysis

Disclosure does not create the exposure

The hospital's liability, if any, exists because the sponge was left behind, not because anyone says so. A retained sponge is the kind of event in which negligence is readily inferred, and the patient's records, including the X-ray and operative notes, will show what happened to any attorney she consults. Concealment does not remove the exposure; it adds to it. A patient who later learns that she was given a misleading account has a new grievance, and courts and juries take a dim view of institutions that hid what they knew.

Experience supports this. One university health system that moved to full disclosure, offering compensation where care fell short, saw new claims, lawsuits and costs decline (Kachalia et al., 2010). Disclosure programs are not guaranteed to reduce claims in every setting, but the evidence does not show that honesty increases them.

Apology statutes

Many states have apology laws that keep a clinician's words of sympathy out of a malpractice trial as proof of fault. Their coverage varies: most protect statements of sympathy or regret, and a smaller number also protect admissions of fault (McDonnell & Guenther, 2008). The hospital's counsel should tell the surgeon which statements are protected in this state. But the protection, or its absence, should shape how the disclosure is phrased, not whether it occurs.

Protection for internal review

The hospital's root cause analysis of the counting failure will usually be protected under state peer review or quality improvement privilege, separately from what is said to the patient. Telling the patient the facts of what happened does not waive protection for the internal deliberations about why it happened. Keeping these two things separate allows full disclosure of facts while preserving the confidentiality that makes candid internal review possible.

Ethical Analysis

Truthfulness and respect for persons require disclosure. She is entitled to know what was done to her body, why she needed a second operation and what it means for her recovery. The risk manager's proposed phrase, an unexpected finding, is not technically false, but it is designed to leave her with a false belief: that the second operation was an unavoidable complication. That is deception by framing. Surveyed patients wanted to hear about any harmful error, what happened and why, how a repeat would be prevented, and an apology (Gallagher et al., 2003). The proposed statement provides none of these.

There is also an obligation to the surgical team. Staff who know the truth and are asked to support a partial account carry moral distress, and a culture that hides errors from patients is unlikely to examine them honestly internally.

The Disclosure Conversation

The conversation should take place soon, ideally within a day, in a private room. The surgeon should lead it, with a nurse the patient knows and a member of the patient safety staff who can answer questions about next steps; the patient may bring family. The surgeon should say plainly that a sponge was left in her abdomen during the first operation, that this should not have happened, that it was removed in the second operation, and that he is sorry. He should describe what it means for her recovery, including the extra days and the additional anesthetic, and what signs of complication to watch for.

Some questions will remain open: exactly how the count failed and whether it was a counting error, a documentation error or a missed item. The surgeon should say these are being reviewed and promise to share what is learned. The patient should be given a single contact person, told that her bills related to the second operation are being reviewed, and offered a follow-up meeting within two weeks.

Compensation

Disclosure raises a practical question the risk manager will ask next: what does the hospital owe? At minimum, it should not bill the patient or her insurer for the second operation and the extra days, which resulted from its own error. Many hospitals with disclosure programs go further and offer early, fair compensation for lost wages and other costs where the review confirms that care fell below the standard. An offer made promptly, with the patient free to consult an attorney, treats her as a person owed a remedy rather than as a potential plaintiff to be managed.

Organizational Learning

The hospital should conduct a root cause analysis of the counting process, with surgical, nursing and anesthesia staff. Likely areas include counts at shift changes, interruptions during closure and the use of radiofrequency-tagged sponges or routine imaging after high-risk cases. The results should change practice, and the patient should be told, in general terms, what changed. The hospital should also review its disclosure policy so that risk management supports, rather than limits, honest communication after harm.

References

Gallagher, T. H., Waterman, A. D., Ebers, A. G., Fraser, V. J., & Levinson, W. (2003). Patients' and physicians' attitudes regarding the disclosure of medical errors. JAMA, 289(8), 1001-1007. https://doi.org/10.1001/jama.289.8.1001

Kachalia, A., Kaufman, S. R., Boothman, R., Anderson, S., Welch, K., Saint, S., & Rogers, M. A. M. (2010). Liability claims and costs before and after implementation of a medical error disclosure program. Annals of Internal Medicine, 153(4), 213-221. https://doi.org/10.7326/0003-4819-153-4-201008170-00002

McDonnell, W. M., & Guenther, E. (2008). Narrative review: Do state laws make it easier to say "I'm sorry"? Annals of Internal Medicine, 149(11), 811-815. https://doi.org/10.7326/0003-4819-149-11-200812020-00007