Becker's Hospital Review

105 FINANCE CMO / CARE DELIVERY 'We can't punish our way to safer medical practices': 2 experts on criminalization of medical errors By Mackenzie Bean and Erica Carbajal H ealthcare workers are burned out and exhausted from juggling pandem- ic-related stressors and additional burdens linked to workforce shortages for more than two years. ese issues pose seri- ous consequences for employees and patients, as numerous studies link clinician burnout and stress to an increased likelihood of med- ical errors. e full picture of how COVID-19 has af- fected 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. e number of serious patient safety inci- dents reported to e Joint Commission jumped in 2021, reaching the highest annual level seen since the accrediting body started publicly reporting them in 2007. e orga- nization received 1,197 reports of sentinel events last year, up from 809 in 2020. e most commonly reported safety event was patient falls, followed by delay in treatment and unintended retention of a foreign object. e apparent jump in medical errors and pa- tient safety lapses amid the pandemic draws newfound importance to a long-debated top- ic: Should medical errors be criminalized? is ethical quandary rose to the national stage with a case involving Radonda Leanne Vaught, a former nurse at Vanderbilt Univer- sity Medical Center in Nashville, Tenn. Ms Vaught was convicted in March for inadver- tently injecting a 75-year-old patient with a fatal medication dose. e Tennessee Board of Nursing also stripped Ms. Vaught of her license in 2021, a move that was condemned by the Institute for Safe Med- icine Practices for its potential repercussions on patient safety reporting and recruitment efforts. Healthcare workers "won't want to join a pro- fession 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." e 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 di- vision 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 im- paired — took drugs to either work harder or work an extra shi, 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 mis- takes,'" 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 forc- es, such as staff shortages leading people to work when they're not well-rested, or being asked to do something beyond their train- ing, "I think you've got to be a little more forgiving," Dr. Caplan said. "I wouldn't take away pay or look aer 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. "e correct moral position, I think, is [to] prevent error." Citing To Err is Human: Building a Safer Health System — a landmark report pub- lished 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 criminal- izing 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 pa- tient 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 re- served for those that deliberately violate the safety protocols and cause harm." A key theme of the Institute of Medicine's re- port was liability concerns serving as a hin- drance to the reporting of medical errors. Re- porting errors, however, is essential to safety and quality improvement, and healthcare or- ganizations 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 peo- ple to come forward and say, 'We're under- manned, you're asking us to do things that I just am not comfortable doing, I need super- vision,'" Dr. Caplan said. "e game here is to prevent errors." n "We tend to pay attention to errors and want to know how to punish them. e correct moral position, I think, is [to] prevent error." Dr. Arthur Caplan, NYU Grossman School of Medicine.

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