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Criminal prosecution of human error will likely have dangerous long-term consequences

From the March 8, 2007 issue

In the past few months, three fatal medication errors have captured news headlines; according to these news reports, criminal investigations are being considered in each case. If the criminal investigations proceed, felony indictments could be levied against some or all of the practitioners involved in these errors. While each of these events resulted in a tragic loss of life, the representation of these events as criminal acts is likely to have an adverse effect on our healthcare system and its critical patient safety improvement initiatives.   

In one case, a 44-year-old woman from Florida died in an emergency department after receiving 8,000 mg of phenytoin IV instead of 800 mg. The experienced nurse who administered the overdose (which required 32 vials [50 mg/mL, 5 mL] from several automated dispensing cabinets to prepare) has been targeted for criminal investigation.

In another case, a 2-year-old child in Ohio died while undergoing chemotherapy after a pharmacy technician mistakenly prepared her infusion using 23.4% sodium chloride, not 0.9% sodium chloride. The technician and pharmacist failed to notice the error before dispensing the chemotherapy. Criminal investigation of the event is under consideration.

In a third case, an elderly woman from Ohio died after she received an IV injection of potassium phosphate that was supposed to be administered via a feeding tube. In this case, court actions have been filed to request a change in the cause of death from an accident to homicide. 

Though we cannot shed light on the causes of these errors, our experience with analyzing sentinel events and other medication errors strongly suggests that underlying system vulnerabilities played a role in each of the errors. And while we are not in a position to judge the behavioral choices made by involved staff who were working within these potentially flawed systems, we are deeply concerned about the recent turn of events that have shed light on the criminalization of human errors in healthcare, including the criminal indictment of a Wisconsin nurse mentioned in our prior newsletters.1, 2

Safety experts and the criminal justice system seem to be at odds regarding the proper course of action to take when a fatal medical error occurs. Safety experts advocate for a more fair and just path for individuals involved in adverse events, arguing that punishment simply because the patient was harmed does not serve the public interest. Its deterrent effects on learning far outweigh its negligible impact on improving individual performance.

Even some professional associations and licensing boards have taken exception to the criminal prosecution of human error,3 citing that, if warranted, the licensing boards can adequately protect patients from reckless or incompetent actions of a healthcare practitioner by limiting or revoking his or her license. Safety experts and many licensing boards agree that the criminal system need only be invoked in rare cases of purposeful harm, such as a physician who molests his or her patients while they are under anesthesia, for individuals like this would pose a specific threat to their patients as well as a general threat to society as a whole. 

In the January/February 2007 issue of The Just Culture Community News and Views, David Marx, JD, provides valuable insight into how we have arrived at this impasse between healthcare providers and the criminal justice system.4 According to Marx, about 55 years ago, the US Supreme Court traced the birth of "criminal" human error, or what is now called "public welfare offenses" to our industrial revolution. Before then, both an evil hand and an evil mind (intent to harm) were needed to label an activity as criminal. But since the advent of powerful machines that, through individual behaviors, could cause significant harm, an evil mind is no longer required for an action to be considered a crime. For example, automobile drivers who have been involved in an accident that caused the death of another individual might be prosecuted in most states for vehicular homicide, even if the death resulted from a human error such as failing to notice a stop sign and driving through it. The reality is that mere human errors that randomly occur in well meaning people are now considered "criminal" in a number of circumstances where public safety is at issue. As noted in The Just Culture Community News and Views4, "For whoever is unlucky enough to make one of these errors, criminal charges are only an indictment away."

Marx4 also contrasts the tenets of "criminal" human error with the notions of a Just Culture. In a Just Culture, human error is typically consoled as long as the individual's behavioral choices were not reckless. Thus, the quality of one's behavioral choices dictates accountability, not the human error itself and/or the severity of its outcome. In contrast to the criminal system, the question within a Just Culture is not whether harm occurred, but whether the individual consciously disregarded what he or she knew to be a substantial and unjustifiable risk to those around him or her. 

The most recent wave of criminal investigations into errors made by healthcare practitioners is cause for concern. The law clearly allows for the criminal indictment of healthcare professionals who make errors that harm patients, despite the lack of intent to cause harm. But it will long be debated whether this course of action is required or beneficial. Its potential impact on patient safety is enormous, sending the wrong message to healthcare professionals about the importance of reporting and analyzing errors. Further, if this is just the beginning of an upward trend of criminal investigations and indictments in the wake of medical errors, it could also have a chilling effect on the recruitment and retention of an already depleted workforce of healthcare professionals.

Most healthcare professionals unwittingly put themselves at risk for criminal indictments when they enter the profession. They are fallible human beings destined to make mistakes along the way, as well as to drift away from safe behaviors as perceptions of risk fade when trying to do more in resource strapped professions.4 But it may not take long in today's society for healthcare professionals to see that they have put themselves in harm's way, forced to accept punishment from the criminal (and civil) system for honest mistakes. Many healthcare professionals already fear making that one error that could result in the harm or death of a patient. Escalating application of criminal error laws also serves as a reminder that a harmful error-often similar in form to minor mistakes we all make on a daily basis-could also strip away a hard-earned and cherished livelihood, the ability to help others, and personal freedoms perhaps once taken for granted.

For more information on this important topic, we encourage you to visit www.justculture.org/downloads/newsletter_janfeb07.pdf  to read the full January/February 2007 issue of The Just Culture Community News and Views. Referred to as the "Criminal Edition" by its editors, the newsletter covers additional examples of "criminal" human error and offers more in-depth discussion about this subject matter so critical to creating strong, open safety cultures. Both ISMP (ismpinfo@ismp.org) and the Just Culture Community (info@justculture.org) welcome your feedback.

References: 1) ISMP Medication Safety Alert! Since when is it a crime to be human? 2006; 11(23):2. 2) ISMP Medication Safety Alert! News update: tragedy brings a measure of good. 2007; 12(1):2. 3) Wisconsin Nurses Association. Nurses stunned by criminal charges. November 3, 2006. Accessed at: www.wisconsinnurses.org/docs/WNA%20Press%20Release%2011.3.06.pdf. 4) The Just Culture Community News and Views. The Criminal Edition. Marx D, Cassidy KM. Eds. January/February 2007.
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