'We can't punish our way to safer medical practices': 2 experts on criminalization of medical errors

Healthcare workers are burned out and exhausted from juggling pandemic-related stressors and additional burdens linked to workforce shortages for more than two years. These issues pose serious consequences for employees and patients, as numerous studies link clinician burnout and stress to an increased likelihood of medical errors. 

The full picture of how COVID-19 has affected patient safety is still unclear, but emerging data on healthcare-associated infections and other forms of patient harm suggest significant lapses have occurred amid the pandemic.

The number of serious patient safety incidents reported to The Joint Commission jumped in 2021, reaching the highest annual level seen since the accrediting body started publicly reporting them in 2007. The organization received 1,197 reports of sentinel events last year, up from 809 in 2020. The most commonly reported safety event was patient falls, followed by delay in treatment and unintended retention of a foreign object.

The apparent jump in medical errors and patient safety lapses amid the pandemic draws newfound importance to a long-debated topic: Should medical errors be criminalized? 

This ethical quandary rose to the national stage in 2019 when Radonda Leanne Vaught, a former nurse at Vanderbilt University Medical Center in Nashville, Tenn., was indicted on charges of reckless homicide and impaired adult abuse after inadvertently injecting a 75-year-old patient with a fatal medication dose two years earlier. Her trial is slated to start March 21, according to ABC affiliate WKRN.

The Tennessee Board of Nursing also stripped Ms. Vaught of her license in 2021, a move that was condemned by the Institute for Safe Medicine Practices for its potential repercussions on patient safety reporting and recruitment efforts. 

Healthcare workers "won't want to join a profession where an unintended mistake could end in the loss of their license or even jail time," ISMP said in a 2021 statement. "Also, healthcare practitioners, including nurses, will not want to speak up when they make an error, which will cripple learning, prevent the recognition of the need for system redesign and set the healthcare culture back to when hiding mistakes and punitive responses to errors were the norm."

The distinction between culpable errors or harm and mistakes made because of external forces is critical when considering whether to criminalize medical errors, according to Arthur Caplan, PhD, who founded the division of medical ethics at NYU Grossman School of Medicine, part of NYU Langone Health in New York City. 

"If you're doing something when you are impaired — took drugs to either work harder or work an extra shift, or recreationally you're abusing, you're drunk or have some other form of impairment — then I think criminal charges become appropriate because those are what we would call in ethics 'culpable mistakes,'" Dr. Caplan told Becker's. "[Culpable mistakes] are things that happened because you did not maintain professional standards of competence." 

When errors happen because of external forces, such as staff shortages leading people to work when they're not well-rested, or being asked to do something beyond their training, "I think you've got to be a little more forgiving," Dr. Caplan said. "I wouldn't take away pay or look after criminal charges in those instances." 

In any case, healthcare, like other industries, should track its close calls and focus on error prevention, Dr. Caplan said. 

"We tend to pay attention to errors and want to know how to punish them," he said. "The correct moral position, I think, is [to] prevent error." 

Citing To Err is Human: Building a Safer Health System — a landmark report published in 2000 from the Institute of Medicine that outlined a national agenda to improve patient safety — Nancy Foster, vice president for quality and patient safety policy at the American Hospital Association, echoed Dr. Caplan's emphasis on error prevention and noted the "chilling" implications of criminalizing medical errors. 

To Err is Human "concluded that we cannot punish our way to safer medical practices because it could have a chilling effect on patient safety improvement efforts," Ms. Foster said in a statement to Becker's. "We agree with those authors that the better approach is transparency and learning from errors to improve quality. Punishment should be reserved for those that deliberately violate the safety protocols and cause harm." 

A key theme of the Institute of Medicine's report was liability concerns serving as a hindrance to the reporting of medical errors. Reporting errors, however, is essential to safety and quality improvement, and healthcare organizations must create environments where employees are emboldened both to ask for help when needed and report errors without fear of punishment.

"You really want to try and encourage people to come forward and say, 'We're undermanned, you're asking us to do things that I just am not comfortable doing, I need supervision,'" Dr. Caplan said.  "The game here is to prevent errors." 

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