Doctors fear criminalization of medical mistakes

A Wisconsin case criminally charging a nurse after an error is the latest in a trend that could drive doctors away from the practice of medicine or interfere with patient treatment and safety, physicians say.

The Wisconsin attorney general on Nov. 2 charged Julie Thao, RN, with criminal negligence after the wrong medication was administered to 16-year-old Jasmine Gant. The girl died after the July incident.

Wisconsin physician and hospital leaders agree the event was an unintentional mistake. But the state complaint says Thao's "failure to provide adequate medical care" and "gross breach of medical protocol ... created a significant danger ... and caused great bodily harm to Jasmine Gant." If convicted, Thao faces up to $25,000 in fines, six years in prison or both.

Medical and legal experts say this type of case is extremely rare and possibly unprecedented in the state. But it is the third case in four months involving criminal proceedings against medical professionals.

An Illinois emergency department may be charged with involuntary manslaughter after a heart attack patient died after waiting two hours to be treated. And, although the case involved questions about care provided rather than a mistake, a doctor and two nurses in Louisiana were arrested in July for allegedly murdering patients with lethal doses of pain drugs in Hurricane Katrina's aftermath.

Doctors worry that a threat of being charged with a crime for a medical error, or for something they did while trying their best to treat a patient, will affect treatment decisions and hinder improvements in care.

"Clearly we want to be accountable. But if we allow these things to become criminal, then what happens to our reporting systems? We would be increasingly in an element of hiding mistakes instead of bringing them forward for review," said F. Dean Griffen, MD, chair of the American College of Surgeons' Patient Safety and Professional Liability Committee.

Doctors also fear that the prospect of going to jail will deter students from entering the field or prompt doctors to leave their careers at a time when a number of states, including Wisconsin, face physician shortages.

Concerns about criminal violations for medical errors also "is a huge incentive [for doctors] to order so many unnecessary tests," said Ruth Heitz, general counsel to the Wisconsin Medical Society. Most medical liability insurance policies do not cover criminal acts, leaving doctors responsible for paying for their defense, she added.

"Medical errors are just that, they're mistakes, and that's why it seems so inappropriate" to apply criminal statutes, Heitz said. "It's a very disturbing trend."

The medical society plans to ask the state to dismiss the criminal charges against Thao once they are formally filed. The Wisconsin Hospital Assn. also opposes the charges.

A question of patient safety

While rare, criminal charges against doctors have traditionally involved accusations of deliberate harm to a patient or mis-prescribing of pain medication, experts said. The Wisconsin case doesn't fit this profile.

Thao gave Gant an intravenous infusion of an epidural anesthetic, instead of the IV penicillin that Gant's doctor ordered for her strep infection, court records show.

Gant arrived at St. Mary's Hospital in Madison, Wis., to give birth. Thao, without a doctor's order, took a bag containing the epidural preparation out of locked storage to show Gant, and then placed it on a counter, according to court documents. Another nurse brought in the penicillin, placing it on the same counter.

Thao told state investigators she did not look at the medication when she inadvertently grabbed the epidural, the complaint states. She also said she did not scan the bag, as hospital protocol requires, to confirm the medication was ordered for the patient.

Thao could not be reached for a response. St. Mary's Hospital is not named in the charges and declined to comment. Thao faces a felony charge under what legal experts say is a broad statute for abuse and neglect of patients in hospitals or other facilities.

The criminal statute applies to negligence that creates a risk for great bodily harm, not just death, and can impact almost any medical mistake, said Jacqueline M. Carolan, a health lawyer and partner with Philadelphia-based Fox Rothschild LLP. She is not involved in the case. "There's no question that [Thao's action] was a mistake," she said. "But when you think of criminal charges, you think of intent, and I don't believe this rises to the level of criminal charges."

Peter A. Joy, director of the Criminal Justice Clinic at Washington University in St. Louis, disagrees. He said the case might fit the mold of criminal charges because the death of the patient, combined with what appears to be the nurse's reckless disregard for hospital policies, "goes beyond ordinary negligence."

When choosing to pursue criminal charges, "a prosecutor might say, 'Is there going to be a sufficient degree of accountability if I just let the tort system handle this, or is this something so egregious that I should prosecute it to serve other purposes and deter further acts?' " Joy said.

Human mistakes are a reality in medicine, but doctors insist that criminal charges are not the solution.

"That is why the [Wisconsin Medical Society] is working to improve peer review and other quality improvement systems," said Heitz, the society's general counsel. In 2005, WMS backed legislation, which ultimately failed, to allow doctors to apologize to patients for medical errors without the apology being used in court as an admission of guilt. Heitz fears that doctors will withdraw support if the prospect of criminal charges for errors looms.

AMA policy opposes the criminalization of medical decision-making because it interferes with patient treatment. The AMA advocates for legislative reforms to define criminal conduct and prohibit the criminalization of health care decisions made in good faith, including cases involving allegations of medical malpractice.

At its November Interim Meeting, the AMA called for a study and report on how physicians could be protected from civil and criminal actions that might arise from care doctors provide to patients during officially declared local, state or national disasters.