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Should Medical Personnel Self-Report Medical Errors?

The case of the convicted nurse and the criminalization of errors made without intent is beyond troubling.

In Tennessee, a 37-year-old nurse was recently convicted of a criminal charge of negligent homicide and will face 3-12 years in prison for a fatal medication error that she self-reported.

The occurrence as it was presented was as follows: this nurse was tasked to retrieve Versed from a computerized medication cabinet for her patient with compromised mentation, and mistakenly administered the neuromuscular blocker vecuronium instead of the prescribed sedative to a patient who was experiencing anxiety before an imaging study. According to an investigation report filed in her court case, the nurse overlooked several somewhat obvious warning signs as she withdrew the wrong drug. One of those obvious signs was that Versed is a liquid, but vecuronium is a powder – which was injected into the patient.

According to a federal investigative report, the nurse told investigators that when the electronic prescribing cabinet failed to dispense Versed, she used a computerized override to obtain the drug, typing in the first two letters and choosing the first medication on the list: vecuronium. Not realizing her error, she administered the vecuronium and left the room. By the time the error was discovered, the patient was unconscious and not breathing, and died the following day. The involved nurse was fired a few days later.

It is interesting to note that Vanderbilt’s pharmacy medication safety officer testified during the trial that the hospital had some technical problems with medication cabinets in 2017, but that they were resolved weeks before the nurse pulled the wrong drug for this patient.

Although the licensing division of the Tennessee Department of Health decided not to take disciplinary action, the criminal case continued. Edie Brous, a nurse attorney, contends that criminalizing the nurse’s actions is not the answer.

“You have to examine the organizational failure that allowed the mistake to happen in the first place,” she said, adding that such prosecutions could discourage error reports, which would undermine ongoing professional and institutional efforts to ensure patient safety.

We often talk about a “just culture” when it comes to patient safety. According to Wikipedia, that term refers to a concept related to systems thinking emphasizing that mistakes are generally a product of faulty organizational cultures, rather than solely brought about by the person or persons directly involved. In a just culture, after an incident, the question asked is, “what went wrong?” rather than “who caused the problem?” A just culture is the opposite of a blame culture. A just culture is not the same as a no-blame culture, but rather a framework where individuals are accountable for willful misconduct or gross negligence

The concept is that we try to limit blame on individuals, but instead focus on the processes, policies, and procedures in place to safeguard against mistakes and adverse outcomes. The essence of a “just culture” is self-reporting, whereby a nurse or doctor freely communicates an error, near-miss, or unsafe practice without fear of repercussions. If the error is deemed reckless, the consequences may be severe, including job termination and loss of license.

Office billing is now based solely on either MDM or total time. On the one hand, this unfortunate event resulted in the death of a patient; in addition, it is also tragic, and obviously irreversible for both the nurse and the patient’s family. Some would argue that this is no different than going to prison for negligent driving, or an error by a police officer that results in the death of another individual and charges against the officer.

However, the other side of the story is the ripple effect that this may have on nurses across the country, who are under immense stress due to long hours, staff shortages, and 24/7 life-and-death issues, who now must fear being criminally prosecuted and even going to prison for reporting an error or unsafe practice.

Yes, we need to improve patient safety. That, of course, is paramount. But we need to look at all layers of the issue, from education to staffing to ensuring that there are policies and processes in place to minimize the risk of human error when professionals like this nurse are working under extreme stress. When an error does occur, a nurse or doctor should feel free to speak up without the fear of going to prison.

Human error has long been recognized as part of the practice of medicine, and there have been many reports over the years demonstrating deaths due to medical errors. We all know errors in healthcare can have particularly devastating consequences. As such, departments regularly have morbidity and mortality conferences to discuss errors, and importantly, improve processes, so systems can be put into place to prevent them from happening again. These conferences have typically been exempt from reporting. The civil justice system, including malpractice lawsuits, are also in place for accountability in particularly tragic cases, along with organizational and professional review boards.  

Were there many mistakes in this case? Absolutely. Are there also lots of opportunities for analysis of and improvement in the factors that allowed this to happen? Absolutely.  

However, the criminalization of errors made without intent is beyond troubling. This nurse self-reported the mistake. How many physicians, nurses, and other healthcare workers will report errors if they can be put in jail for them? How will future errors be prevented if they don’t?  

Accountability is different than criminal prosecution. Many healthcare workers have made or have witnessed mistakes that will haunt them every day of their life. Human life is personal, and even when there are no mistakes, learning to deal with and accept bad outcomes is something we all struggle with daily. When these outcomes are preventable, we absolutely must make changes – but putting this nurse in jail does not make for productive change.

Regardless of what you think about the circumstances of this case, this precedent of criminal prosecution and potential jail time is alarming, and will have longstanding consequences for professionals and patient care. 

Programming Note: Listen to Dr. Zelem live when he anchors the Talk Ten Tuesdays News Desk today at 10 Eastern. 

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John Zelem, MD, FACS

John Zelem, MD, is principal owner and chief executive officer of Streamline Solutions Consulting, Inc. providing technology-enabled, expert physician advisor services. A board-certified general surgeon with more than 26 years of clinical experience, Dr. Zelem managed quality assessment and improvement as a former executive medical director in the past. He developed expertise in compliance, contracts and regulations, utilization review, case management, client relations, physician advisor programs, and physician education. Dr. Zelem is a member of the RACmonitor editorial board.

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