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When is a Medical Error a Crime?

Posted Oct 30 2008 11:52am

The 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.

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