Unrepresented Patients and Medical Error: Disclosure and Apology

By Arjun S. Byju and Kajsa A. Mayo

What should a clinical team do when an error occurs in the care of a patient who lacks both capacity and a surrogate, to whom an expression of contrition could otherwise be offered?

This vexing question served as the initial impetus for our paper. As medical students, the authors have been frequently exposed to the concept of medical error—and its disclosure—in the practice of modern healthcare. Yet, the vast majority of scholarship on adverse event disclosure presupposes the existence of surrogates (family or friends) that can be involved in the process of incident reconciliation.

In situations where a patient is not competent enough to accept such a disclosure and no surrogates are present, what is a clinician to do? Does the moral obligation to disclose error still exist if the people who would receive the disclosure do not exist (particularly if ought implies can)?

These are not mere theoretical questions. As we quickly learned, a growing number of patients are considered “unrepresented” because of their lack of decision-making capacity and a surrogate decision maker. Often referred to as the “un-befriended,” “isolated patients,” and/or “patients without surrogates,” these persons already comprise roughly 16% of ICU admissions. As demographics continue to shift in industrialized nations, the number of people, particularly the elderly, without representation and capacity is expected to rise dramatically. Because some fraction of these patients will experience medical error, the necessity for well-defined protocols for managing their disclosure becomes increasingly important.

In this paper we attempt to begin this discussion, first arguing that the precarious position of un-represented patients, particularly in regards to errors made in their care, demands their recognition as a vulnerable patient population. Next, we assert that the ethical obligation to disclose error still exists for the un-represented because the moral status of error does not change with the presence or absence of surrogate decision-makers. Finally, we conclude that in outwardly acknowledging wrongdoing, a clinician or team leader can alleviate significant moral distress, satisfy the standards of a genuine apology, and validate the inherent and equivalent moral worth of the un-represented patient.


Paper title:  Medical Error in the Care of the Un-Represented: Disclosure and Apology for a Vulnerable Patient Population

Author(s): Arjun S. Byju1 & Kajsa A. Mayo2


1 Albert Einstein College of Medicine, Bronx, NY, USA

2 University of Rochester Medical Center, Rochester, NY, USA

Competing interests: None

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