Should health care workers go to jail for medical errors?

Two years ago, I wrote about the case of Julie Thao, the Wisconsin nurse sent to prison for a medication error. I argued then that – although Julie bypassed some safety rules – she most certainly did not deserve jail time.

Along comes another case involving jail time for a medical mistake, this one featuring an Ohio pharmacist named Eric Cropp. I became aware of Eric’s case through the efforts of Michael Cohen, the endlessly energetic president of the Institute for Safe Medication Practices (and 2005 winner of a MacArthur “Genius” Award), who has championed Eric’s cause. Michael and I, along with several other safety and pharmacy experts, discussed it last week on a webcast sponsored by CareFusion (a replay of which can be heard here).

Eric was the lead pharmacist at Cleveland’s Rainbow Babies and Children’s Hospital on February 26, 2006. The pharmacy, understaffed that day, received a rush order for chemotherapy for a 2-year-old girl, Emily Jerry, who was undergoing treatment for a spinal malignancy. An unlicensed and distracted (by press accounts, she was planning her wedding on the day of the event) pharmacy technician mistakenly mixed the chemo with 23% saline rather than the intended 0.9%. Eric, working in cramped quarters and rushed for time, gave final approval to the mixture, partly because, after seeing a spent bag of 0.9% saline next to the mixed solution, he assumed that it had gone into the solution. In other words, the case was a classic illustration of James Reason’s Swiss cheese model, in which numerous safety checks failed due to a confluence of systems and human errors. Tragically, little Emily died from the hypertonic saline infusion.

On hearing of the error, a Cuyahoga County DA decided that the case merited criminal prosecution, even though Eric had no history of errors in his pharmacy career and root cause analysis of the case confirmed that its cause was simple human error compounded by systems problems. At trial, fearing even harsher penalties, Eric pleaded guilty to involuntary manslaughter, and was sentenced to 6 months in the state prison, 6 months of home confinement, 3 years of probation, 400 hours of community service, and a $5,000 fine. Moreover, the Ohio pharmacy board permanently stripped him of his license, depriving him of his livelihood – forever. (The hospital was also sued, and settled the case for $7 million.)

During last week’s webcast, Mike Cohen described visiting Eric in prison. “Like a scene out of a movie,” he recalled, with Eric in his orange jumpsuit, speaking to visitors through a glass wall, other felons – including violent offenders – milling about. As he related the visit, Mike choked up with emotion, clearly seeing this tale as both powerfully tragic and cautionary.

I won’t reiterate my discussion from the Julie Thao case, except to restate my view that the criminal system should have absolutely no role in dealing with medical errors unless we are talking about cases of sabotage, or of willful and recurrent violation of safety rules when harm was foreseeable. By all reports, Eric’s case met neither of these criteria.

Instead, I’d like to place this case in the broader context of the patient safety field, weaving it together with my New England Journal piece last month on balancing “no blame” and accountability. I’ll also raise some parallels with national debates over mammograms and conflicts of interest.

As we approach the 10th anniversary of the patient safety movement on December 1st (more on that next week), one can feel the ground shifting – from our initial “it’s all about ‘no blame’” mantra to an environment in which accountability is being increasingly demanded of us. Part of my reason for arguing so strongly that we need to begin enforcing our own safety standards – particularly when we’re dealing with no-brainers like hand hygiene – is that the public is beginning to see our reflexive invocation of “no blame” as in-credible – as evidence of our unwillingness to address performance gaps, even when they are egregious. I worry that the more we appear to be looking the other way, the more likely we are to experience imposed solutions: by regulators, through tort law, or, most troubling, in criminal courts. Parenthetically, this issue feels a lot like our debate over healthcare conflicts of interest, particularly gifts and payments to doctors by drug and device makers. In both cases, our failure to police ourselves has literally invited outside intervention.

While the Cleveland case was partly driven by public concerns regarding patient safety, by all accounts, the trial’s outcome was also swayed by the emotional testimony of Emily’s mother, Kelly Jerry – an articulate, anguished woman who had lost her baby. How do we deal with the public emotion that is sure to well up in cases like this?

Interestingly, even Emily’s (now divorced) parents disagreed about the role of the pharmacist in Emily’s death. “Eric Cropp’s incompetence goes far beyond conducting one reckless act,” said Kelly Jerry, Emily’s mom. “[He] consciously disregarded any and every set standard of protocol regarding patient safety.”  On the other hand, Chris Jerry, Emily’s dad, said, “I feel very sorry for the pharmacist… This guy is facing a prison sentence, and I know it was an accident.”

Like the debate over last week’s mammography guidelines, Kelly Jerry’s testimony pitted science against emotion. I think it would be next-to-impossible to find a safety expert who believes that Eric Cropp’s mistake rose to a level that merited criminal penalties. Similarly, after reviewing the U.S. Preventive Services Task Force data, it would be difficult to find a dispassionate scientist who would argue that mammograms in low-risk women aged 40-50 have a favorable risk-to-benefit ratio (not to mention cost-to-benefit). Yet, politician after politician (many of whom knew better) literally sprinted to the klieg lights to denounce the Task Force and defend what we now know to be bad public health policy.

The point is that politics and emotions will always compete against science in public debates about critical health issues. Our job as experts is to do the best we can to explain the complex concepts (whether it is error theory or risk-benefit ratios for preventive services) clearly and honestly. But even when we do, on those hot button issues that stir up public passion, the political process is likely to win out. Whether the politicians and attorneys truly don’t understand the science or are simply pandering, it is always troubling to watch, and it was particularly sad last week to see the Preventive Task Force members, all good scientists trying to do the right thing, being thrown under the bus by Secretary Sebelius and others.

Similarly, it is natural for the parent, spouse or friend of a loved one who dies of a medical mistake to demand a pound of flesh, damn the Swiss cheese. In Internal Bleeding, Kaveh Shojania and I wrote about this, citing the wonderful book on medical malpractice by anesthesiologist Alan Merry and famed novelist Alexander McCall-Smith (yes, that McCall-Smith). The words ring true as we think about the case of Eric Cropp:

“It is to be expected that families or patients will blame the party holding the smoking gun, just as they would a driver who struck their child who ran into the street to get a ball. Some bereaved families… will ultimately move on to a deeper understanding that no one is to blame – that the tragedy is just that. But whether they do or not, write Merry and Smith, ‘It is essential that the law should do so.’”

In this case, the law did not do so. Please give a thought to the victims of this terrible tragedy, Emily Jerry and her parents.

And Eric Cropp.

Bob Wachter is chair, American Board of Internal Medicine and professor of medicine, University of California, San Francisco. He coined the term “hospitalist” and is one of the nation’s leading experts in health care quality and patient safety. He is author of Understanding Patient Safety, Second Edition, and blogs at Wachter’s World, where this post originally appeared.

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