Committing medical error: fallible or criminal?

A recent Webcast about Eric Cropp, an Ohio pharmacist who’s serving time in jail, has been making the rounds on the Internet and sparking some intense, impassioned discussion.

Cropp isn’t in jail because he embezzled money from the pharmacy or assaulted a customer. He was the lead pharmacist at a hospital in Cleveland in 2006 when a medication error was made, resulting in the death of a 2-year-old girl who was being treated for cancer. Criminal charges were filed; Cropp pleaded guilty to involuntary manslaughter and was sentenced to six months in jail, followed by six months of house arrest and three years on probation. He also was stripped of his pharmacist’s license. (The hospital settled a civil lawsuit with the child’s family for $7 million.)

The case received a ton of attention, as well it might. It also sent shivers down the spines of practically every health care professional who heard about it and pondered the implications.

Should health care professionals be criminally prosecuted if they harm a patient? It’s extremely rare for a doctor or nurse or anyone else to face criminal charges in connection with injury or death to a patient, which is probably one of the reasons why Eric Cropp’s case made the news. Society has generally judged that most medical errors are unintentional and that health care professionals deserve some leeway, at least as far as the criminal court system is concerned.

Are there instances, however, in which someone’s conduct or risk-taking rises to the level of a crime? It’s a troubling question with no clear answers.

Back in May, when Cropp was convicted, many of the online commenters in the health care world were incredulous. Dr. Jeffrey Parks, an Ohio surgeon who blogs at Buckeye Surgeon, described his reaction:

He wasn’t drunk or impaired. He wasn’t even the one who prepared the mixture.  He was inattentive and lazy and careless, and now he faces the real possibility of serving jail time as a consequence. He’s a pharmacist, not a doctor, but the implication and precedent is clear – health care professionals are not immune to the prospect of a criminal trial.

Dr. Parks’s commenters agreed with him. “This should scare all medical providers,” one person wrote. Someone else wrote, “Criminal act? Are you kidding? He made a mistake. We all do… every day.”

“An injustice has been done,” declared Michael Cohen, president of the Institute of Safe Medication Practices, in an opinion piece he wrote shortly after Cropp was sentenced this past August.

Fast-forward to a couple of weeks ago and the Webcast, sponsored by CareFusion, along with the ISMP’s most recent newsletter, which seems to have raked up the emotions all over again. Dr. Bob Wachter, one of America’s foremost gurus of health care safety and quality, brought some of the most critical questions into the forefront recently on his blog.

His view:

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.

I’ve read differing accounts of what happened. One of the allegations was that the lethal saline mixture was prepared not by Cropp but by a pharmacy technician who was distracted by plans for her upcoming wedding. But according to other versions of the story, the pharmacy tech pointed out to Cropp that the saline solution didn’t look right and he approved it anyway.

There apparently were problems with understaffing, the work load and the pharmacy’s computer system that may have contributed to the fatal error, as an analysis by the Institute for Safe Medication Practices found. There even were accusations that the child’s family had political connections that may have influenced the decision to prosecute. Many of the details are impossible to know because they have either been shielded or simply not publicized.

But there’s a bigger issue here, Dr. Wachter explains. It’s the widening disconnect between the health care world and the public on who’s accountable for medical error. Dr. Wachter writes:

… 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.

I can’t help noticing that in many of the online discussions about this issue, it’s the health care practitioners who usually leap to the staunch defense of their colleagues, and members of the general public who are more skeptical. One commenter at Buckeye Surgeon wrote that “health care professionals have always gotten a free pass” and suggests, “Maybe it’s time to level the playing field.”

At MedCity News, a pharmacist reminded people not to be quick to judge. “If you walked a mile in the pharmacist’s shoes you would understand,” he wrote. But someone else wrote, “Of course there was no intent in this case… the pharmacist didn’t mean to kill the child but his reckless and willful disregard for safety [nonetheless] caused the death… and for that he should be held responsible.”

I don’t think the answers are black and white. In fact I don’t know what the answer should be, because the entire question is clouded with ambivalence. One of the commenters on Dr. Wachter’s blog summed up many of the issues that make health care fallibility vs. criminality so hard to address:

Why exactly are health care personnel exempt from the consequences of their mistakes? The answer I hear from others posting is that if we don’t exempt them then they will not report their mistakes and the systems that caused them will not improve.

Is the hospital involved now staffing the pharmacy more fully? Did they learn from their error enough to now put enough personnel (paying enough to have skilled enough staff) in place to keep this tragedy from happening again? Did they pay enough in their malpractice settlement to teach them that it is wiser to invest their money on the front end by hiring enough people, paying enough for well qualified, skilled individuals? Or, as is more likely the case, does the settlement represent “the cost of doing business”?

… One answer proffered here is that this pharmacist or indeed any other health care provider making a similar mistake has already learned his lesson and living with the knowledge of the consequences of his action is punishment enough, and will make him a better pharmacist. But, in other places I have heard time and again that practitioners make mistakes – that they cannot be expected to be perfect – that it is the nature of the art of medicine.

… It seems that health care practitioners want it all. They want to be allowed to make mistakes, not be subject to censure, prosecution or malpractice (because gosh, mistakes happen, we can’t expect perfection) and not have anyone except a few insiders know about it. You want us to trust you to fix it privately, behind closed doors, protecting everyone involved. You want us to trust you, but you don’t think we’re smart enough to understand the complexities of the system in which you operate. You want to be special. You want to operate above the law with your own set of secret rules.

She concludes, “For the record, I am swayed by the argument offered by Dr. Wachter that the pharmacist did not deserve to be criminally prosecuted. And, I still have all these questions noted above.”

Most people in the health care professions are not “bad apples.” The vast majority of them are bright, hard-working, dedicated and ethical. When things don’t go well for a patient, they are probably harder on themselves than the patient or family would ever be. But it’s naive to think all of them measure up to this standard or that all of them are fit to practice. Maybe most mistakes can be forgiven but some cannot. Health care professionals, no less than the public, are wrestling with this, and it’s an issue that calls for some genuine soul-searching.