The Criminalization of Medical Errors

Should Be a Wake-up Call for Health Care

Leaders
By Kedar Mate  | Thursday, May 5, 2022

A colleague told me about an experience she had recently. It was just after RaDonda Vaught
was criminally charged with negligent homicide and abuse of an impaired adult after
accidentally giving the wrong medication to a patient in Tennessee. My colleague was in a
room full of health care providers, and she asked them to raise their hands if they were
currently providing clinical care.
All the hands went up.
She said, “How many of you have been involved in a near miss or an adverse event of some
kind in your career?”
Again, every hand went up.
She asked another question. “How many of you reported that event to your leadership team or
through the normal event reporting system?”
She estimated that around 90 percent of the hands remained up — a testament to decades of
work in patient safety on transparency, open and honest reporting, and building learning
cultures in our organizations. And then she asked, “How many of you would report the event
today if there was a risk that you might go to prison?”
All but five of the hands went down.
Picture in your mind that room full of nurses, doctors, pharmacists, and other allied health
care professionals with only five people left raising their hands. It is a good way to visualize
the degree of fear that has been created by this phenomenon of criminalizing medical errors

If you are actively practicing as a clinician today, you know the realities of the health care
environments in which you work. You know adverse events — or near misses — are not
uncommon.
Unfortunately, we know that patients fall. We know that pressure injuries remain
commonplace in many care locations. We also know that, in many care settings, overrides of
medication dispensing systems can be an everyday occurrence. We know it is all too common
for patients to receive, or nearly receive, an incorrect medication.
We are, to say the least, in a very challenging moment in health care. We are still actively
dealing with COVID-19. The pandemic has reversed almost a decade's worth of gains in
patient safety in just two short years, as evidenced by the rise of healthcare–associated
infections and declines in surveys of patient safety culture scores. We are grappling with staff
shortages across health care and how best to work with a blend of temporary and core staff.
Fatigue, burnout, depression, anxiety, and moral injury are heartbreakingly widespread
And now, on top of all that, we have layered this notion that when a medical error happens,
the individual care providers involved can be prosecuted and put in prison for something that
was not intentional harm but is, instead, the product of systems unintentionally designed to
produce errors. Instead of critically examining those errors, trying to understand their root
causes, and creating reliable processes and safer systems, decisions to criminally prosecute
individual clinicians for errors place blame in the wrong place. Such choices do not ensure
that systems are held accountable.
Now, to be sure, there are rare instances when there is intent to harm or behavior so reckless
and impaired that one would know it would cause harm. Those individuals should face stiff
consequences. But, in the case in Tennessee, there appears to have been no intent to harm. In
fact, there was immediate reporting of the error by Ms. Vaught. And, as the CMS
investigation showed, there were significant systems-level issues that were contributing
factors to the harm event that needed to be addressed.
Criminalizing medical errors does not make health systems safer. It ultimately puts more
patients at risk because we drive reporting of near misses and errors underground, and we
lose crucial learning opportunities that might help us resolve the underlying system failures
and defects that allow these errors to occur.
What Leaders Have the Power to Do
Recent events are a wake-up call for those of us in the safety world. We might have believed
that we had successfully made the case for transparency, candid reporting, and learning. But
Ms. Vaught’s case reminds us that we must continue to be vigilant, and we must continue to
help our colleagues and the public understand how to create safer systems. This will mean
building and restoring psychological safety and ensuring that our organizations pursue Just
Culture to reclaim the hard-won gains lost during this pandemic period.
We must get back to basics and fix and reinforce the foundations of safe, person-centered,
and equitable care. Let resources like Safer Together: A National Action Plan to Advance
Patient Safety and Leading a Culture of Safety: A Blueprint for Success be our guides. We
must hold ourselves accountable for ensuring that we, and the systems and environments in
which people work, mitigate risks and promote candid reporting, transparency, learning, and
responsiveness.
The role of health care leaders right now is critical. We are uniquely positioned in our
communities and organizations to make clear — to our staff, patients, legislators, and those in
the justice system — that the placement of blame on an individual is not sufficient to solve
for system-level problems. We must step up and unequivocally let the health care workforce
know that we support transparent, open, and honest reporting of error and harm events. This
is crucial not only to reassure staff — who are understandably feeling especially vulnerable in
the current climate — but also to pledge to the public that health care is committed to
identifying the sources of error, defect, and harm in the system and dedicated to taking all the
steps necessary to eliminate it.
Editor’s note: Look for more each month from IHI President and CEO Kedar Mate, MD,
(@KedarMate) on improvement science, social justice, leadership, and improving health and
health care worldwide.
You may also be interested in:
The  IHI Patient Safety Congress
Why Developing Individual “Resilience” Isn’t Enough to Heal Moral Injury