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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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17 replies »

  1. 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 take the case of a 50 yr old woman wrongly castrated! I WAS THE VICTIM OF CRIMNAL BEHAVIOR IN A HOSPITAL!!!

  2. 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 medical malpractice??? His response was that I should go back to Jewish Memorial Hospital, and ask them for a referral..I practically pleaded with him to look at me, because i was in agonizing pain and had schlepped out into the snowstorm to seek help, and given that I had been barely able to move for the past three days, i had no idea of what tomorrow or the next day might bring for me, but he didn’t look at it. This isn’t the first horrible experience in Montreal, they have all been like this, and aren’t there rules that govern MD behaviour?

  3. 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 medical malpractice??? His response was that I should go back to Jewish Memorial Hospital, and ask them for a referral..I practically pleaded with him to look at me, because i was in agonizing pain and had schlepped out into the snowstorm to seek help, and given that I had been barely able to move for the past three days, i had no idea of what tomorrow or the next day might bring for me, but he didn’t look at it. This isn’t the first horrible experience in Montreal, they have all been like this, and aren’t there rules that govern MD behaviour?

  4. 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 learn from each other through open discourse about our medical errors, especially if they resulted in complications for the patient. The ultimate goal of this medical forum is to improve patient care.
    Every physician makes mistakes during his/her lifetime, which if not discussed openly for the sake of educating others in our field, will continue to happen over and over again with varying consequences to our patients. Lets make an attempt to stop that cycle using this forum.

  5. 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 had be causing me years of ill health.
    The new doctor I had started with a few months earlier then saw this as an opportunity to get rid of me.
    I was blacklisted and then retaliated against and left to die.
    The public is unaware of this type of thing going on but it does exist.

  6. 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.

  7. 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 regulatory system of The Guild because this is the only place where the fear of utter ruin for individuals and families might be mitigated, and because The Guild alone has the capacity to judge professional performance at the level of the individual.
    By virtue of its professional standing, the public has a right in justice to expect The Guild to regulate itself. It will not do for The Guild to slough off this responsibility to payers or purchasers. But this is what is happening, leaving no choice for others charged with promoting the Common Good than to “interfere” in various ways. Everyone would be better off if The Guild could step-up and see to it.
    t

  8. 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 providers working in an environment which focuses on systematic changes are more apt to report errors and take responsibility for their own errors. The focus must then be shifted on building and maintaining vigilant hospital regulatory systems, which are able to diagnose and treat systematic problems that contribute to the overwhelming mortality caused by preventable medical errors. Going further, I do agree there must be ‘bad apples’ in the healthcare professions whom I would not want treating my loved ones, and I believe there must be a system of addressing this minority. Again, this responsibility can be handled by a competent regulatory system which could handle these apples suspensions and promote continuous quality improvement in order to catch these individuals before many reckless errors can occur.
    The healthcare profession is unlike any other profession in the world. Providers hold the lives of our loved ones in their hands each and every day. From a patient perspective, medical errors draw upon understandably heavy emotional responses, however, we, (as patients) must attempt to see the razor-thin lines doctors, nurses, and other providers walk each and every day. We have to ask ourselves the question of what other factors were affecting Julie Thao? Why was she working a double shift? Was this due to the vast nursing shortage our country is in? Was this due to the lack of nursing schools and educators? Also, how do lawsuits awarding egregious amounts of money affect the healthcare system? Where does this money ultimately come from? How will increasing malpractice suits and the burdens of malpractice insurance affect the thoughts of those, like myself, in medical school now when they enter the system as providers?
    We must see the challenges and reasons we cannot treat quality improvement in healthcare just like any other business in this country. Addressing the ‘bad apples’ will ultimately entrap the minds of providers in hesitation and fear; rather we must approach medical errors from a systematic approach to provide a safe, educating, and healthy environment for both patients and providers.
    -A.K. Agarwal

  9. > 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

  10. 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 with this death and thus no financial incentive to effectively keep it from happening again. Everyone got paid. The hospital no doubt generated record revenue. The new super-cardio, money generator wing was still on scheduled to start spewing cash any day. The victim’s were someone else’s problem.
    The issue was talked about behind closed doors. “It’s very complex, more education is needed” was the consensus answer provided yet again. And the downward spiral continues.
    Note to victims: Please remember, everyone at the hospital has good intentions and your best interests at heart. Not.

  11. 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 need to address the issue of who bares the brunt of the mistakes being made.
    Inequalities in healthcare expose minorities and the poor to greater risk of errors in their health treatment. For example, health care professionals in clinics that serve the uninsured have less time to work with and gather information from each individual patient. This time pressure can lead to more errors. Further, health professionals serving the underserved may well have less access to more advanced diagnostic equipment and by not using the most advanced techniques may indeed provide a lower standard of care.
    I think that we must broaden our concept of what an error is to include lower standards that result from a lack of money on the patient or providers part. Until we are able to provide equitable health care to all members of society, there will be far too many medical errors – even if all medical professionals do toe the line in terms of safe practices.

  12. Tom, if your analogy to the Catholic Church and the medical guilds is true, we are in trouble. I don’t think the comparison is even close even given my tendency toward negative criticism. Church management knew CRIMES were being committed and went to great effort to hide, not only the crime, but the perpetrator, while tossing the victim in the trash bin.
    I think in some cases docs/nurses commit medical crimes but certainly not in the felony category. The real crime is in passing the cost of mistakes on to the unknowing patient. As a patient and husband of a career nurse, I’ve learned that the leadership culture in the instituion outside of the guild mindset determines how this is handled. In my wife’s present institution she randomly audits charts, teaches/trains, oversees best practice, and as part of the management team, will move nurses to less critical units or out the door if patient safety and care are in jeopardy. Can we ask anything more from mostly ordinary people? In general for docs I have less confidence in their desire/ability to police their own (not a comment on my wife’s present institution) because they tend to have too much of an individualistic attitude and the, “but for the grace of god go I” viewpoint which mutes criticism because they feel what goes around comes around. I do know that in her present environment docs do tell patients parents (neo natal) when mistakes are made. From the patient’s(victim) view most want recognition that a mistake was made and want an apology (first step) and sincere understanding of their feelings. If that apology doesn’t come then the patient feels less than human and more of a victim not in control. Being sorry for what you did goes a long way to future prevention and a realization you need to do better. Rarely do we see apology.
    In another life, a doctor threatened my wife’s life during the course of her doing her job. Support from the physicans group was non-existent (poor leadership)but support from nursing management and the hospital was strong. During the course of investigation leading to criminal charges we found out this doc HAD been moved from one institution to another by letter-of-recommendation embellishment. It’s easier to move than fire. The Collage of Physicians, who provided a prosecution lawyer, did also try him but he was allowed to conitnue to practice. Overall his medical practise was mediocre with fits of recklessness, but his larger weakness was his aberrant character. My wife is sure in one instance he killed a baby through his actions but could never prove it. He was forced out of the hospital only when the unit nursing staff wrote a letter to management saying they would refuse to work when he was on duty. But he again made his way to the next institution even though the hospital CEO made that hospital aware of his history. Sure enough years later my wife got involved again when he showed up in the news for another outragous incident.

  13. I agree in the main with Watcher. He does leave what I think is an important question unaddressed though: “Accountable to whom?”
    If its true that 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 so-on, they why oh why cannot “The Guild”, you know, those people protected from undue competition by licensure laws, deal with it effectively, discreetly, and without ruining reputations and livelihoods? This was the social bargain, after all: professionals would be accountable first of all to the profession, the only people in a position to judge the performance of other professionals. In return, society would enjoy the very highest standards of yada yada yada…
    Wasn’t that it?
    It seems to me that this failure of The Guild to behave as a Guild has led to the construction of straw houses for the tort-bar wolves to huff and puff and blow down. We have witnessed a repetition of this pattern during the recent past in the Catholic Church, causing great pain and doing great damage. And although there is in some quarters great glee at seeing the damage, there is no doubt that it is self-inflicted. It is the same problem in both cases: people want the trappings and perquisites of authority, and they actually have authority, but cannot bring themselves to excercise it. We see the results. In the Church: bankrupt dioceses and worse; in healthcare: hmmmmm. What’s different there?
    It is no solution to throw sandbags in front of straw houses. The Guild must see to the proper construction of brick houses. Until docs, especially docs but also nurses and management, resume active and enthusiastic involvement in their hospital medical staff organizations, local medical societies, ACHE chapters and so-forth to address these difficulties, we will continue to see more of what we’ve seen lately.
    So: “Accountable to whom?” If The Guild will not hold its members accountable to itself, the civil authorities and payers will have no choice but to intrude further with their very blunt tools to attempt what The Guild promised they’d do with finely-honed skills.
    t

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