Medical errors should not be prosecuted as crimes: Systemic change is needed

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.

Burnout and depression in physicians: Not good for them or for the public's health

For some years now, there has been increasing emphasis in the medical community about “physician burnout”. While there different degrees and kinds of burnout, generally it refers to a feeling among physicians from having little or no enjoyment in their work to feeling unable to continue. At this far extent, it contributes to doctors leaving the direct practice of medicine for a less-stressful area where their medical background is useful (administration or insurance work or consulting) to leaving the profession altogether. It can be for a different career, or, if they are older and more financially able, early retirement. In the case of young physicians, particularly residents who are still doing their post-graduate training, working very long hours and getting paid relatively little – and since many have medical school debt exceeding a quarter of a million dollars, it can be actually little – burnout could prevent them from taking on a full career in medicine.

Of course, burnout can affect any profession, or any job, although that term is mostly used for professionals, who have historically counted on some degree of independence and control of their work lives. Feeling burned out, not interested, overwhelmed, and even resentful is common and maybe even normative in much non-professional wage work, where the assumption is often “of course you are alienated”, selling your labor to a boss whose only interest is in profit and to whom you are only a tool to generate it. It is a more recent phenomenon in the professions, particularly as professionals become essentially employees, and the profession I know most about is medicine.

Historically, physicians have worked very hard, long hours, often through the night, taking call to come in and see people (called, in medical terms “patients”), operate on people, deliver babies. In small towns and rural areas, where there were few other physicians with whom to share call, this was often particularly disruptive to home and family life, not to mention sleep. The compensating plusses were considered to be a good income, a high level of respect from the community, a sense of making a contribution and a difference, and some level of control of your practice. Although, often when coming in in the middle of the night, it might not seem like much control, many or most doctors were self-employed, and even when they became part of larger groups they were among the owners.

Over the last few decades, many things have changed in the practice of medicine, increasing the burdensome characteristics and decreasing the positives. These are mostly related to the increased size of medical enterprises and the corporatization of medical care. On the one hand, in the name of “efficiency” the practice of medicine has become routinized, less varied, less interesting, and sped up. Physicians often feel that they are on a treadmill churning patient visits as if they were widgets, not having the time that they would not only like but would be necessary to understand their patients as people, and to begin to meet their more complex needs – and people are complex, with every aspect of their lives affecting their health. They may be paid more, but they have much less control, and often seem to (and do) spend as much time completing their Electronic Medical Records (EMRs) as in patient contact, and it may feel (correctly) that the purpose of the work that they put into the EMR is aimed primarily at maximizing income and profit for their employers rather than maximizing the health of their patients.

The strategies which have been employed to attempt to address burnout have ranged from the individual (support groups, various therapies) to structural (changing the work situation). Many physicians are seeking to achieve more “work-life balance”, with more time for their families and other non-work life. The ameliorations include shift work (work hard but for a specified period of time, and know when you will be off and that you really will be off), limiting scope of practice, and, certainly, increased reimbursement. But because these “solutions” do not work as well for all specialties, burnout does not affect all specialties equally. Shift work is most effective in specialties in which continuity of care for an individual patient with an individual doctor is not seen as important; thus it works well for emergency medicine, anesthesiology, critical care, and a few other areas. It has also been widely employed in hospital work, with “hospitalists” who care for people who they do not see as outpatients working shifts (including for delivering babies), and has extended to generate yet newer specialties like "nocturnists” and “weekendists”. And has even renamed the doctors who do see people in the outpatient setting as “ambulists”. How well this works depends on who you ask; it is “efficient” for the employer, and the hospitalists know their hospital stuff, but for the patient, not only are you not seeing a doctor who knows you but your hospitalist may change every few days (and nights).

Salaries in medicine are still usually tied to how much the individual physician generates for the organization, which is heavily dependent on how insurers reimburse, and that is far more for surgery and other procedures than for “just” seeing, talking with and examining a person, reviewing lab and x-ray information, and coming to a diagnosis and treatment plan. So doctors who do the latter make less money (family physicians, general internists and pediatricians, psychiatrists) than do proceduralists. Thus, the physicians in the highest paid specialties (particularly those not just highly paid but that have the highest income/work ratios) are more likely to be successful in achieving work-life balance and avoiding serious burnout. And those who have to be most available for the greatest portion of time with the least support, rural family physicians, burnout can be highest. Although these doctors also often retain the most degree of autonomy, with time demands coming from their patients, not the corporations that employ them.

It is also worth talking about serious mental health issues that physicians confront, and especially the continued disincentives for them to receive necessary and appropriate care. A March 30, 2022 Op-Ed in the NY Times, ‘Why So Many Doctors Treat Their Mental Health in Secret’, by Seema Jilani discusses this, and in particular how employers and licensing boards feel free to ask about this, contributing to an atmosphere of stigma so that, in fact, many doctors do not treat their mental health issues at all. It would be outrageous for us to expect doctors to not treat their asthma, heart disease, cancer or myopia, but for mental health conditions this remains a real issue. It is one of the two great examples in medicine of the double-edged sword of “you should do this, but we may punish you for it”. The other is in the area of acknowledging mistakes (or even potential mistakes). There is excellent data showing that admitting and examining mistakes at the institutional level absolutely increases the overall quality of patient care (‘every mistake a jewel’, because we can learn from it; see W. Edwards Deming’s “14 points”). However, physicians who do so risk discipline, license loss or restriction, and even lawsuits. These punitive results (except for egregious cases) should not be there, and most of those who wrote letters to the Times in response to Dr. Jilani’s article (and I) agree that these punitive risks should not face physicians who seek treatment for depression or other mental health issues. Burnout and depression are not the same things, but may, and frequently do, co-exist.

Doctors are privileged workers; they are generally highly paid relative to most people, they still earn a great deal of respect, and they have the opportunity for great personal satisfaction through serving others. But they are often held to the standards of independent professionals while increasingly working for corporations, and they not immune from the stresses of overwork, lack of control, speed-up, and negative aspects of how capital treats its workers.

And they are certainly not immune from mental health issues, and should be able to receive appropriate treatment without inappropriate repercussions.

 

I did not address the issue raised by the recent conviction of a nurse in Tennessee for criminally negligent homicide for accidentally giving a patient the incorrect medication, but obviously this is entirely relevant to the issue of acknowledging errors, and the work situation for health professionals and thus issues of burnout and depression and, indeed incarceration.

A very good discussion of that case, 'Are All Medical Errors Now Crimes? The Nurse Vaught Verdict' appears in Medscape, and I would absolutely endorse this quote from one of the participants:

"A culture of safety is one in which the system that allowed the mistake to happen is changed, not one in which the individual is scapegoated. And a culture of safety correlates with better patient outcomes that we know. This verdict is the opposite."