SOURCE: Medical Professional Liability Association
By Stuart L. Weinstein, MD
As a practicing orthopaedic surgeon for more than 40 years, I’ve seen how the threat of medical liability lawsuits impacts physicians and the practice of medicine. The progressive undermining of the doctor-patient relationship and the defensive posture healthcare providers take in the delivery of care are two real causes for concern. But I can tell you that nothing will harm patient safety and access to care more than the criminalization of unintended adverse medical outcomes.
It’s difficult for outside observers to understand the nuances of the nurse’s case. However, one thing is clear—its implications may extend far outside the courtroom, impacting patients in exam rooms and operating rooms, and harming the integrity of our healthcare delivery system.
Adverse events in healthcare can have devastating impacts, but only rarely should they result in criminal prosecution. Generally, accountability is more appropriately found through our civil justice system and professional licensing and review boards. Blurring the line between these legal and professional checks and balances has the potential to disrupt the significant progress that is being made in improving patient safety.
This point is made clear in the Institute of Medicine’s landmark report, “To Err is Human.”2 The study concludes that medical errors are seldom made with malicious intent, but instead are made by good people working in healthcare systems that may need reform. Unfortunately, “legitimate liability concerns discourage reporting of errors.”3
Further study by the Agency for Healthcare Research and Quality (AHRQ) found that “most clinicians felt unsupported or under-supported, partly due to ambiguity around whom to approach and what can be discussed.”4 The report encourages an environment where medical providers feel safe disclosing errors and adverse events to generate opportunities for improvement in patient safety efforts.5
Disrupting an Established System
Today, our justice system clearly distinguishes between “civil” and “criminal” negligence. To move away from this practice and obscure the critical difference between the two for unintended medical errors would negatively impact the quality of care by discouraging providers from reporting mistakes that would otherwise lead to patient safety improvements.
Additionally, if the prosecutors of our nation’s criminal justice system continue down a path that denigrates decades of progress in the patient safety movement, it will undoubtedly have a chilling effect on the attraction and retention of healthcare providers—compounding the growing health professional shortage crisis.
For example, a recent survey by the Association of Critical Care Nurses found that of the 6,000 nurses surveyed, 92% said they believe the COVID-19 pandemic has depleted nurses at their hospitals.6 Another 66% feel their experiences during the pandemic led them to consider leaving nursing.7
This shortage also extends to the physician population. According to the Association of American Medical Colleges, the U.S. faces a shortage of up to 124,000 physicians over the next 12 years, further jeopardizing timely access to care.8
The AHRQ found a causal relationship between health workforce interruptions and an increased risk of errors, particularly medication administration errors.9 Thus, these workforce stresses will likely add to the challenge of performing life-saving tasks safely and effectively. Criminalizing adverse outcomes will accelerate these staffing shortages and hamper efforts to prevent future errors.
The repercussions of these actions will also be felt across the civil court system, giving plaintiffs’ attorneys the ability to use the threat of criminal penalties to reach settlement agreements in cases of adverse outcomes that resulted from no errors at all. Allowing these unsettling new precedents in provider accountability to proceed unchecked would unquestionably do more harm than good.
References
1. “Ex-Nurse Convicted in Fatal Medication Error Gets Probation,” The New York Times, May 15, 2022, https://www.nytimes.com/2022/05/15/us/tennessee-nursesentencing.html
2. “To Err is Human: Building a Safer Health System,” Committee on Quality of Health Care In America, U.S. Institute of Medicine, 2000, https://www.ncbi.nlm.nih. gov/books/NBK225182/
3. “To Err is Human: Building a Safer Health System,” Committee on Quality of Health Care In America, U.S. Institute of Medicine, 2000, https://www.ncbi.nlm.nih.gov/ books/NBK225182/
4. “Second Victims: Support for Clinicians Involved in Errors and Adverse Events,” U.S. Agency for Healthcare Research and Quality, Sept. 7, 2019, https://psnet.ahrq.gov/ primer/second-victims-support-clinicians-involved-errors-and-adverse-events
5. “Second Victims: Support for Clinicians Involved in Errors and Adverse Events,” U.S. Agency for Healthcare Research and Quality, Sept. 7, 2019, https://psnet.ahrq.gov/ primer/second-victims-support-clinicians-involved-errors-and-adverse-events
6. “Hear Us Out Campaign Reports Nurses’ COVID-19 Reality,” American Association of Critical Care Nurses. Sept. 21, 2021, https://www.aacn.org/newsroom/hear-usout-campaign-reports-nurses-covid-19-reality
7. “Hear Us Out Campaign Reports Nurses’ COVID-19 Reality,” American Association of Critical Care Nurses. Sept. 21, 2021, https://www.aacn.org/newsroom/hear-us-outcampaign-reports-nurses-covid-19-reality
8. “Doctor shortages are here—and they’ll get worse if we don’t act fast,” Association of American Medical Colleges, April 13, 2022, https://www.ama-assn.org/practicemanagement/sustainability/doctor-shortages-are-here-and-they-ll-get-worse-if-we-don-t-act
9. “Second Victims: Support for Clinicians Involved in Errors and Adverse Events,” U.S. Agency for Healthcare Research and Quality, Sept. 7, 2019, https://psnet.ahrq.gov/ primer/second-victims-support-clinicians-involved-errors-and-adverse-events