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Coalition Addresses Criminal Charges for Medical Errors

Tuesday October 2, 2007
<B>Nurses should own up to errors, but they should not be alone in shouldering the responsibility for a culture of safety.</B>
Nurses should own up to errors, but they should not be alone in shouldering the responsibility for a culture of safety.
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Injuring patients who are reliant on care and comfort is a nightmare for most nurses. The frightening fallout linked to making a medical mistake includes a life of guilt, regret, and sadness.

But more and more, healthcare professionals who make medical errors face a more worrisome penalty, criminal charges.

In late 2006, the Wisconsin Department of Justice charged obstetric nurse Julie Thao with a felony for making a medical error that caused the death of a patient.

Although Thao pled no contest to two lesser misdemeanor counts for the role she played in the death of a patient at St. Mary's Hospital in Madison, Wis., the direction society is moving by prosecuting nurses who err unintentionally is scary indeed, says Gina Dennik-Champion RN, MSN, MSHA, executive director of the Wisconsin Nurses Association.

"When she was charged, it was like getting hit in the stomach. I think every single one of us as a nurse said, 'Oh my God,' " Dennik-Champion adds. "There was talk about it being an error and why should one be charged criminally for making a mistake. That prospect has a chilling effect on nurses who want to participate in a culture of patient safety."

In May, as part of its response to the court's ruling, the Wisconsin Nursing Coalition, a semi-formal collective of practitioners, educators, union organizers, politicians, and other specialists, drafted a working paper on nursing fatigue, which is identified as playing a role in the occurrence of mistakes. Then the coalition distributed the paper to its affiliates. Filled with research, recommendations, and strategies, the paper is an outline meant to be added to or changed as best fits each group.

"What we are trying to do is build awareness for the nurse and provide things to think about when it comes to fatigue, including some of the ethical issues that go with it," says Dennik-Champion, a coalition member.

There's no question nurses should own up to errors, but they should not be alone in shouldering the responsibility for a culture of safety, she adds.

Nancy Brent, RN
"It has become commonplace and accepted among administrators and their peers to mandate that nurses work overtime," says Stephanie Bloomingdale, director of public policy for the Wisconsin Federation of Nurses and Health Professionals. "The way we see it is that currently we have employers out there who are absolutely irresponsible in forcing nurses to work mandatory overtime.

"When nurses work prolonged hours and are forced to work beyond the end of a shift, they are often fatigued, and we know that fatigued nurses are more likely to make mistakes," Bloomingdale says.

Thao's error, which consisted of administering an intravenous epidural in place of penicillin, was made while working a shift separated by only seven hours from a double 16-hour shift the day before, according to published reports.

Proponents of Thao say her medication mistake, like the more than 7,000 fatal medication errors that occur each year, according to the Institute of Medicine, was one error in a series of systemic misdeeds.

Responsibility needs to rest with all of those involved in a hazardous staffing condition that places patients at risk and is allowed to persist, Bloomingdale says.

"I think there's this sense that this is an injustice," she says. "It's certainly not fair to patients. No one should go to the hospital and have to receive care from someone who's been there for 16 hours. But it's not right that management puts nurses in this position and then, when mistakes are made, the nurse is charged criminally, essentially ruining her life."

Throughout the healthcare industry, last year's incident triggered a wave of apprehension and compelled hospitals across Wisconsin to examine staffing and fatigue issues, says Brad Manning, PhD, immediate past president of the Wisconsin Medical Society and a plastic surgeon at Meriter Health Services in Madison.

But there's no readily apparent solution in an industry beleaguered by shortages, he says, adding that the medical society voiced strong opposition against criminalizing a mistake.

"On the one hand, there's a set amount of work that needs to be done and, on the other, we have to be able to assure patients we're doing the best and safest possible work for them in the safest possible way," Manning explains.

Nurses want to be team players and do what's best for the patient and employer by volunteering to work extra shifts. However, the nurses also want to be told they can't work overtime because of fatigue issues, Dennik-Champion says.

For hospitals not to recognize the nursing shortage and its ramifications and not make amends, either by stepping up recruitment or changing policy, conveys they are comfortable putting people in jeopardy, Bloomingdale says.

To head off dangerous staffing protocols, Bloomingdale's group now is drafting legislation that would prohibit mandatory overtime except in cases of unforeseen emergencies.

It's a policy change that needs to happen sooner than later because an unintentional act was shaped by actors at several levels in a hospital, yet still deemed individually criminal.

"The more of this kind of thing that happens, the more you discourage certain people from going into these professions," Manning says. "And I think we run the risk of pushing forward shortages in nursing or medicine, whatever the area in the hospital."

Robin Huiras is a freelance writer.

Law expert shares her view

While being charged criminally for making a medical mistake is a frightening prospect, increasingly it's the reality for numerous nurse and healthcare providers, according to Nancy Brent, RN, MS, JD, who represents nurses before state licensing agencies.

"This is not a new situation, of course. The ramifications are that now a nurse not only has to be concerned about professional negligence as a potential liability, but potential criminal charges and disassociation by the state board of nursing," Brent says.

And although tens of thousands of medical mistakes occur each year, it's difficult to predict which incidents will be followed by criminal charges.

"When you have a state's attorney or disciplinary agency that has to answer to the legislature, and I'm not saying they're making bad justice, there is a whole different approach to prosecution of cases than if an individual attorney decides not to take a case," Brent says.

Since justice departments across the nation have repeatedly filed criminal charges against nurses who've made medical errors in the course of duty, Brent suggests nurses remain aware about potential consequences and act accordingly.

"The nurse cannot say, I've got an excuse: I worked two, 16-hour shifts and I was tired, and not have charges brought against him or her because the response to that would be that he or she needed to get out of the situation that caused him or her to sacrifice personal and professional integrity," Brent says.

"Because nurses deal with people's lives and well-being, if there is an adverse event, a breech in the standard of care or duty, whatever ramifications befall that individual are the price one pays for being in this profession," Brent adds. "Although that's harsh, I feel it's part of being in the profession [of nursing]."

At the same time, whenever a medical error occurs, the roles of other healthcare providers need to be evaluated.

"If the supervisor, the director of nursing, or the hospital CEO breached his or her responsibilities and could be charged with a criminal action and was not, well, shame on the state's attorney," Brent says. "It's not fair if a nurse gets charged with a crime and others do not."