Criminalizing unintended mistakes will make health care less safe

Errors in health care can be deadly. Accordingly, our No. 1 priority as leaders in health care is to reduce errors. We believe that the criminalization of health care errors will only work to hamper progress in making the health care system safer for patients. Unfortunately, a recent, well-publicized case, where a nurse was criminally charged for the death of a patient who she accidently gave the wrong medication, may have already done damage to the effort to make health care safer.

At Cooper University Health Care, we are on a dedicated journey to become a High Reliability Organization to improve patient safety. An HRO has been defined as an organization “that consistently makes fewer mistakes than others working in the same field despite conditions that are stressful, fast-paced or full of risk.”

One of the five principles to becoming an HRO is having a “preoccupation with failure.” As one writer explained this concept: “HROs encourage and reward error and near-miss reporting. They clearly recognize that the value of remaining fully informed about safety is far greater than any perceived benefit from disciplinary actions.”

Clinical teams are alerted to weaknesses in practices and procedures when errors or near misses are reported. This knowledge allows them to improve such practices and procedures, which leads to improved patient safety. When this knowledge is lost, errors become much more likely.

We know that providing medical care is extremely complex and frequently risky. Often, health care professionals are performing delicate procedures or working with dangerous equipment and medications that require focus and attention to detail under stressful and time-pressured conditions. Under such circumstances, errors become more likely.

Health care professionals need strong systems and processes to protect patients under these complex and risky conditions. These systems and processes must be continually checked for weaknesses, vulnerabilities and variations in real world situations in order reduce the chance of error. That requires those working under these conditions to report what they experience.

Reliable safety systems, processes and practices will not be built when the fear of criminal charges for accidents prevent health care professionals from reporting errors or near misses. Teams cannot learn where flaws or weaknesses exist, if they have no knowledge of nearly missed or actual errors.

The Joint Commission, which accredits health care organizations and drives patient safety and quality improvements, states that the way to improved safety is more reporting of errors, not criminalization of them:

“Identifying and reporting unsafe conditions before they can cause harm, trusting that other staff and leadership will act on the report and taking personal responsibility for one’s actions are critical to creating a safety culture and nurturing high reliability within a health care organization.”

We agree. At Cooper, we are committed to creating a “just culture” where our team members are encouraged to report errors and near misses without fear of reprisal to ensure we are doing everything to keep our patients safe. A culture focused on discipline for errors promotes less transparency and silence about potential unsafe practices and conditions. It only encourages more errors.

We also know that far too many medical errors occur, which result in too many tragic consequences for patients. In fact, the Joint Commission reported that, in 2021, it received the highest number of serious patient safety incident reports since public reporting began in 2007. As an industry, we must do better — even in a pandemic.

Everyone in health care, from administrators, support staff and clinical professionals, has an obligation to improve upon this record. Our goal, though it may be difficult to achieve, must always be zero errors and no harm to patients from avoidable, accidental errors. To meet this goal, our public policies as well as our internal policies must encourage patient safety improvements, not hinder them.

We believe that individuals should be held accountable for their actions, as appropriate. Criminal charges, however, should only be considered in cases where errors result from reckless behavior or willful disregard for established safety processes, norms and practices. Health care institutions, in fact, have peer review processes and state licensing boards to investigate such cases to make proper determinations on a case-by-case basis.

In cases where there is egregious behavior, those responsible for patient harm are acting outside of the established standards of care and are morally and ethically culpable for their actions. Accidental, unintended errors that are not reckless in nature, however, do not meet this level of culpability.

As sentencing day approaches for the nurse in the heartbreaking case that recently received national attention — perhaps as soon as this week — we hope the judge will consider all the circumstances and the negative impact a harsh sentence could have on improving patient safety.

We know that nurses, and all of our health care professionals, have dedicated themselves to treating and healing patients, not harming them. They work tirelessly to prevent errors and to keep patients safe. We stand together with them in working to create a just culture that encourages reporting of errors to promote patient safety.

When serious, unintended medical errors do occur, it is tragic for all concerned. Criminalizing those accidental errors only serves to compound this tragedy. It makes future errors more likely and our health care system less safe by discouraging actions that lead to continual patient safety improvements and fewer errors.

Kevin O’Dowd and Anthony Mazzarelli serve as co-CEOs of Cooper University Health Care, a leading academic health system based in Camden.