As reported recently in MedPage
Today, Kentucky has become the first state to pass a law shielding medical
professionals from criminal prosecution for clinical errors. This is important.
It is a good thing and had the support of many professional organizations. It
is not about protecting nurses and doctors who actually commit crimes, as ‘it
does not apply to "gross negligence or wanton, willful, malicious, or
intentional misconduct."’ For example, the
Pennsylvania nurse convicted of murdering patients with insulin would not
be covered by this law. But mistakes happen, and while they can have very bad outcomes
in the medical setting – including death – when they are not intentional they
should not be prosecuted as criminal acts.
The case cited as motivating this law occurred in the neighboring state of Tennessee, and involved a nurse named RaDonda Vaught at Vanderbilt Medical Center. She mistakenly gave a paralytic rather than a sedative with a similar name to a 75 year old woman, causing her death. She did not try to cover it up but reported it immediately, and yet was charged with and convicted of reckless homicide and impaired adult abuse. The outcome, the woman’s death, was terrible, but the criminal charges were neither justified nor functional. Yes, you can bet that the particular nurse would be extra careful the next time she gives medication – although, of course, with the criminal conviction she has lost her nursing license. Maybe it could be a deterrent to other nurses and doctors making inadvertent mistakes? Think about how well this works in other areas, about, for example, how a pedestrian or bicyclist being killed by a car in your town has suddenly made all the other drivers extra careful. Right.
Doctors, nurses, and other health
professionals are already careful (barring the rare truly malicious exception,
who is not covered by this law). The issue is how to make it increasingly
difficult to make mistakes, to make errors. A whole field of health safety and
error prevention exists, originally stimulated by the work of W. Edwards Deming
and Avedis Donabedian, and including such luminaries as the Institute for
Healthcare Improvement (IHI) and founders Donald Berwick and Paul Batalden, and
Harvard professor Gordon Schiff. One
thing that is clear is that the solution is not draconian punishment of those
who have made mistakes. It is mostly (almost all) about systems, about making
it difficult (and some day, hopefully impossible) to commit errors. Deming said
“To find the mistake is not enough. It is necessary to find the cause behind
the mistake, and to build a system that minimizes future mistakes”. Every
mistake is a gem, because it offers us the opportunity to discover the cause
and to develop systems to prevent that, and similar, mistakes in the
future.
Many systems have been developed in many places and areas of healthcare to do this. For example, in pharmacy drug lists, similar sounding or spelled drugs are often distinguished by having the letters that are different capitalized, calling attention to it and making it less likely to prescribe the wrong one. Surgery now almost never takes place without a final “timeout” in which a checklist is gone through with all the operating team present, including “which side are we operating on”! There are many more examples. In the field of occupational health, the first choice in preventing injuries is architectural, e.g., don’t put a big window next to a place on the shop floor where slippery substances are spilled. The second choice is engineering: ok, the window is there, so let’s put up bars across it so if people do slip they don’t go through. The last choice is behavioral: tell the people who work there to be careful! If this last sounds unlikely to be completely successful, it is both the most common and the least effective. Imagine your being responsible for changing the behavior, consistently and always, of a person. Now make that everyone! Think back to drivers…
It is true that many, maybe most, healthcare facilities are and have been working to improve quality and limit the number of possible places that workers can make mistakes, but these procedures are processes and must continually be upgraded and enhanced, primarily by identifying mistakes that continue to be made and figuring out how they can be prevented. Quality improvement is not something that can be “put in place”; it is both a state of mind of individuals and most importantly an overarching commitment on the part of the institution, in all places. Yes, it costs money – but so do the lawsuits that come when it is inadequate, and that should not be the motivation.
Although making money is a strong
motivation. Insurance companies, for example, are very good at instituting
procedures that make them money. ProPublica
recently published an article about Dr. Debby Day, who was one of the
physician reviewers at CIGNA, tasked with reviewing the decisions about
approving or denying coverage for people’s care, after the initial decision was
made by a nurse reviewer (mostly working in the Philippines). CIGNA continually
monitored the number of minutes taken for each review, and physicians
like Dr. Day were sanctioned or even fired if they took too long. They took too
long making decisions that could not only affect people’s health, but their
life and death. Your life and death. Your family’s. How were they supposed to
keep up with the speedup expectations? ‘“Deny, deny, deny. That’s how you
hit your numbers,” said Day, “If you take a breath or think about any of these
cases, you’re going to fall behind.”’ This makes CIGNA (and, to be fair ALL
the big health insurance companies) money. The speedup is part of it, but the
denials are where the real money is made. Denying ‘coverage for a cancer
patient or a sick baby’. Your cancer. Your baby.
To be sure, insurance companies as such are not the actual providers of health care, like hospitals and doctors. Except, increasingly through vertical integration, they are – UnitedHealth, for example, owns Optum (and OptumRx, a pharmacy benefits manager). The thing is that they are corporations and are very good at putting systems in place to increase their bottom-line profits, even when that harms the health of – or kills – people who are their clients. So, I think, they should and can be equally effective in putting in place systems that protect and benefit those clients/customers/patients/people.
Hopefully, the type of law passed
in Kentucky will become more widespread. This will make it more difficult for
the prosecutors and politicians who want to make their “tough on crime” reps by
such prosecutions, which is good. But also, hopefully, it will be combined with
renewed efforts to strengthen the systems of quality control, and
greatly limit the possibility of an individual making a mistake.
The health of people should be the goal of healthcare organizations.
