Professionalism has to balance the differences of fiduciary and contractual relationships between physician and patient:“The kind of minimalism that a contractualist understanding of the professional relationship encourages produces a professional too grudging, too calculating, too lacking in spontaneity, too quickly exhausted to go the second mile with his patients along the road of their distress” (3). There is a relationship between physician and patient that extends beyond a contract and assumes the elements of a fiduciary relationship—a covenant between parties. The physician, having knowledge about the elements of health care, assumes a trust relationship with the patient where her interests are held paramount. Both the patient and the physician have rights and responsibilities in this relationship, and both are rewarded when those rights and responsibilities are upheld. Honesty, disclosure, confidentiality, and informed consent are expressions of that trust or covenantal relationship.
In creating a trustworthy and safe environment, disclosure of unanticipated outcomes can add to the trust patients have in their health care team and ensure that all medical errors or near misses are used to improve the environment of care. If we are obligated as professionals by our trust relationship with our patients, then patients should expect truthfulness, including being made aware of individual or systemic errors, which, as Kohn et al. noted in To Err Is Human, are inevitable in the delivery of health care (4). The climate of no-fault discussion of errors creates an environment conducive to restructuring the systems or procedures that make it possible for errors to occur and is critical in development of a safety culture.
Medical errors can create a keen sense of shame, humiliation, and failed responsibility in health professionals, and efforts have begun to identify and develop the skills and methods for disclosing and learning from them (5). Support for individuals facing these feelings and wanting to disclose is critical in this development. Skills that seem common to disclosure are: telling the medical facts, honesty and truthfulness (responsibility and answering questions), empathy (and apology), stating how future errors will be prevented, and using good communication skills (6). These are skills that require training and development and should not be taken for granted. Many institutions have risk management groups or other support groups that can be helpful in development of skills and can accompany or lead such a discussion in the absence of those skills. Disclosure and apology cause apprehension for physicians—particularly in the discipline of obstetrics and gynecology where litigation adversely affected practice patterns (defensive medicine) and heightened a reluctance to disclose medical errors for fear of litigation (7). It is interesting to note that open disclosure overall generated less litigation than failing to disclose, and the growth of compensation with disclosure seems to add to this decrease (8– 12). Apology raises particular anxiety about implying culpability and inciting litigation, so help with framing an apology is always appropriate. The obligation of trust (fiduciary relationship) that we have with our patients is part of the healing aspects of medicine—and we owe it to our patients and to ourselves to develop the robust curricula and support at all levels of medicine to make disclosure the step toward solution and healing that it can be for both physician and patient.
Confidentiality The patient seeking assistance from a health professional has the right to assurance that the information exchanged during that interaction is kept private. Privacy is essential to the trust relationship between doctor and patient. Discussions are privileged information. The right to privacy prohibits a physician from revealing information regarding the patient unless the patient waives that privilege. Privileged information belongs to the patient except when it impinges on the legal and ethical rights of institutions and society at large, regardless of the setting. In a court situation, for example, physicians cannot reveal information about their patients unless the patient waives that privilege. If privilege is waived, the physician may not withhold such testimony.