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When is a Medical Error a Crime? by Bob Wachter

Bob Wachter is one of the nation’s leading experts on medical safety and one of the pioneers of the hospitalist movement. And now he’s descending into the mire of blogging! So we’re pleased to cross post one of the more recent pieces from his (relatively) new blog Wachter’s World.

Robert_wachterThe first commandment of the modern patient safety movement was “Thou Shalt Not Blame.”
Old-Think:
errors are screw-ups by “bad apples,” and can only be prevented by some
combination of shaming and suing the doctor or nurse holding the
smoking gun. New-Think: errors represent “system problems;” any
attempt to assess blame will drive providers underground, inhibiting
the free-flow of information so crucial to error prevention. Like
most complicated issues in life, the truth lives somewhere between
these polar views. In the main, the “no blame” view is right – most
errors are committed by good, hardworking docs and nurses, and
finger-pointing simply distracts us from the systems fixes that can
prevent the next fallible human being from killing someone.Yet,
taken to extremes, the no blame argument has always struck me as both
naive and more than a little PC. Anyone who has practiced for more than
a month can name docs and nurses who they would never want caring for
their loved ones. And what about the substance-abusing nurse, the
internist who doesn’t keep up with the literature, the
retractor-throwing surgeon, or the provider who refuses to follow
reasonable safety rules. If nobody is ever to blame, who is
accountable?

This debate reached a fine point last year with the case of Julie Thao,
a Labor and Delivery nurse at St. Mary’s Hospital in Madison,
Wisconsin. On July 5, 2006, Thao, working a double shift, was caring
for Jasmine Gant, a pregnant 16-year-old high school student. Gant
appeared to be infected, and Thao intended to give her a dose of IV
antibiotics, as well as an epidural anesthetic. By report, Gant was
anxious about the epidural, and the nurse removed the anesthetic,
bupivacaine, from the Pyxis machine to show it to her patient. The
bupivacaine had a label warning against intravenous administration, and
the hospital had a bar code medication administration system. Thao
apparently missed the former and bypassed the latter (we don’t know how
often other St. Mary’s nurses did the same thing, but many bar coding
systems are bypassed 20-30% of the time), ultimately mistaking the
bupivacaine for the antibiotic and infusing the anesthetic
intravenously. Gant died soon afterwards; her baby was saved by an
emergency C-section. The hospital apologized to Gant’s family, Thao’s
license was suspended by state regulators, and St. Mary’s agreed to
tighten its policies and its educational programs for nurses.

This
case would have been but one more terrible tragedy in the sea of fatal
medical errors but for an aggressive Wisconsin district attorney, who
chose to charge Thao with patient neglect and causing great bodily
harm, a felony that carries a penalty of up to six years in prison and
a fine of $25,000. Thao eventually pled no-contest to two misdemeanors,
after which the prosecutor dropped the felony count. The case became a
cause célèbre in the blogosphere, with most bloggers noting the chilling effect that criminal prosecution would have both on reporting and on nursing recruitment and retention.

Which
errors really should be handled with “no blame” and a focus on shoring
up faulty systems, and which are indeed blameworthy? The current issue
of AHRQ WebM&M,
the patient safety journal I edit for the Agency of Healthcare Research
and Quality, features two articles on “Just Culture,” the concept that
tries to answer this question.

The first is my interview with David Marx, the engineer-attorney who first described the application of Just Culture to healthcare and now runs the “Just Culture Community.” According to the Just Culture paradigm, three kinds of behaviors can lead to errors:

  • Human error – inadvertently doing other than what should have been done; a slip, lapse, or mistake.
  • At-risk behavior – a behavior that either increases risk where that risk is not recognized or is mistakenly believed to be justified.
  • Reckless behavior – a behavioral choice to consciously disregard a substantial and unjustifiable risk.

Marx argues that most errors are due to at-risk behaviors
– shortcuts and workarounds that normal people use to get their work
done – and should be dealt with by examining why the system pushed them
to make these choices. On the other hand, reckless behavior is blameworthy, and should be handled accordingly. A companion article by Alison Page,
Chief Safety Officer of the Fairview system in Minneapolis, describes
how her terrific organization has made these concepts real. Both pieces
are well worth reading.Where did Julie Thao’s behavior fit in? Marx, though clearly sympathetic, has argued
that the fact that she bypassed a number of safety systems makes her
behavior more reckless than simply at-risk. I agree: although Thao was
apparently a good, hardworking, and compassionate nurse (and a highly
sympathetic figure – a divorced mother of four, with one child serving
in Iraq), the number of safety system shortcuts she took (working a
double shift, removing the epidural from the locked box, neglecting the
warning label, bypassing the bar code system) make it difficult to look
the other way, even if there was no intent to harm (as there clearly
wasn’t). But, like Marx, I think the criminal justice system has no
role in such cases unless the healthcare regulatory system (such as her
own organization’s HR department and the state licensing board) cannot
manage the problem effectively. I see no evidence of that in this case.
So, from what I know of the case, I think that Thao should have
been counseled, suspended, and, arguably, fired. But criminally
prosecuted? No way.A few years ago, I heard Aetna’s then-CEO
Dr. Jack Rowe speak. “I have three boxes on my desk,” he quipped. “The
Inbox, the Outbox, and the ‘Too Hard Box.’” For too long, we have filed
this issue of “no blame” vs. “accountability” in the “Too Hard Box.”
The Just Culture concept doesn’t answer every question or address every
situation, but I like it for being a thoughtful attempt to place this
crucial issue in the Inbox, where it rightly belongs.

Bob Wachter blogs at Wachter’s World.

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jupirena SteinOlivia ShawCJ PlourdeBrijesh MehtaSandy Sampson Recent comment authors
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jupirena Stein
Guest

Medical Crime. See for yourself.
http://www.youtube.com/watch?v=XQGMl9KXXFw
Thank you.
J. Stein

Olivia Shaw
Guest
Olivia Shaw

I consider the intent when distinguishing crimes from mistakes. I went to a doctor who “INTENTIONALLY” ADDED information to signed consent form, removed healthly ovaries ( he was only supposed to remove a fibroid tumor) and lied to the insurance company about the purpose of the surgery. When challenged, all parties involved, the doctor,the hospital and the insurance company only did what they thought necessary to cover their own A—-. This happened before HIPPA and it was not until after HIPPA that I was able to get records from the insurance company. I could not sue because no lawyer would… Read more »

CJ Plourde
Guest
CJ Plourde

I went in to a doctors office in Montreal today and asked him to look at a lump in my right breast, which was swollen and red, and very painful. He didn’t. What was frustrating was that I dragged myself into that office, today, because I have discogenic degenerative disk disease, and haven’t been able to move for three days. I really did crawl into that office. Ive had really horrible experiences with the Quebec healthcare system, and my question is this: Since the doctor didnt even give me a referral, and didnt even look at my breast, isnt THAT… Read more »

CJ Plourde
Guest
CJ Plourde

I went in to a doctors office in Montreal today and asked him to look at a lump in my right breast, which was swollen and red, and very painful. He didn’t. What was frustrating was that I dragged myself into that office, today, because I have discogenic degenerative disk disease, and haven’t been able to move for three days. I really did crawl into that office. Ive had really horrible experiences with the Quebec healthcare system, and my question is this: Since the doctor didnt even give me a referral, and didnt even look at my breast, isnt THAT… Read more »

Brijesh Mehta
Guest
Brijesh Mehta

I just wanted to let everyone here know about a new blog for: Medical Error Talk http://medicalerrortalk.blogspot.com This blog is aimed for physicians who may anonymously post comments about medical errors that they or their colleagues may have committed; the idea is to generate a discussion about the error, what can be learned from it, and how it may be prevented in the future. Given the debate about medical error-reporting in the US and how it may impact physician compensation through performance scales that are based on rate of medical errors, it is critical that we as a physician community… Read more »

Sandy Sampson
Guest
Sandy Sampson

I was a victim of a cover up at a hospital. I had a need stuck in my spine and the hospital claimed I was in that condition because I was depressed. They were really covering up the fact I had Meningitis and this left me in critical condition without medical help. The hospital was withholding information from my family and withholding blood test results as well. They made it impossible for me to get medical help. Why did this happen? I was going to file a complaint against another doctor who had misdiagnosed a serious medical problem and it… Read more »

Aesculapius
Guest
Aesculapius

I’d say that the BOT of the Hospital needs to bite the bullet, accept responsibility and demand accountability from Department Heads et al. for what goes in in the hospitals. Hospitals need to evaluate near miss errors in much the same way as the FAA evaluates near-misses. In this case, dismissal seemed the appropriate remedy, with whatever financial compensation deemed reasonable to the aggrieved family.

Mega
Guest

mmmm…

Mega
Guest

Super project! Dr Agarwal the best!

Tom Leith
Guest
Tom Leith

Dr. Agarwal says: > responsibility [for dealing with careless or > incompetent medical profesionals] can be handled > by a competent regulatory system Yes, of course. But this begs the question what is the competent regulatory system? The point of the article is that both systematic and individual issues must be addressed. Systematic issues might be addressed by all sorts of people from MDs to RNs to MBAs and I expect Great Things™ when they work together on them. We have good evidence that this expectation is well-founded. My other point is that individual issues must be addressed within the… Read more »

A.K.Agarwal
Guest
A.K.Agarwal

I would definitely agree with Marx’s classification of medical errors and behaviors. However, I believe a steadfast approach of addressing ‘bad apples’ over ‘bad systems’ may easily snowball out of control within healthcare. Lawsuits and blame-games directed toward healthcare professionals can lead to vast amounts of underreporting and lost of valuable public health information in terms of quality improvement and hospital standards. Now, by no means am I condoning all errors as items to be glossed over during QI meetings or M&Ms in hospitals – especially those caused by reckless behavior. I believe caring and competent physicians, nurses, and other… Read more »

Tom Leith
Guest
Tom Leith

> there’s enough information available to solve
> the majority of these problems if it were cost
> effective to do so.
It apparently is cost-effective to do so, and I point to the experience of Ascension Health and especially the work of Dr. David Pryor about whom I have commented before in this thread.
t

Peter
Guest
Peter

Here’s a guild taking action. Notice how long it took and how much had to happen before action.
http://www.thestar.com/News/Ontario/article/278056

S Swain
Guest
S Swain

A young woman’s life was needlessly taken anyway, a newborn baby’s life was thrown to the wind, and a grieving family or society was left to deal with the consequences. What are the odds that the hospital didn’t send a bill to this woman’s family for the “care” provided? I’m even willing to bet that the cost of the drug that killed her was included. With as many as 98,000 medical error deaths each year, there’s enough information available to solve the majority of these problems if it were cost effective to do so. But there were no costs associated… Read more »

C M O'Grady
Guest
C M O'Grady

An important aspect of the quality of care question not addressed here is that in order to get quality care, one must have access to quality care. Issues of inadequate access to care, incompetent or sub-competent health care providers and the problems the system all compound to create a health care system that kills between 44,000 and 98,000 people in U.S. hospitals each year (Bodenheimer). While I agree that it is time to start holding health care professionals AND problems with the system responsible for these deaths and less serious mistakes that occur in hospitals, I believe that we also… Read more »