Should Medical Errors Be Punished or Forgiven ?

healthysoch

New Delhi, April 13, 2019 ;

Case Study by Dr KK Aggarwal & Advocate Ira Gupta

RaDonda Vaught, a nurse working at Vanderbilt University Medical Center, has been charged with reckless homicide in the death of a patient, Charlene Murphey. She is facing criminal prosecution by the State of Tennessee. She typed in “VE” in the pharmacy computer and selected the wrong drug to administer—VECURONIUM instead of VERSED.

She made a mistake in believing that the first drug on the screen was the drug that she had intended.The natural law principle is of not putting fellow humans at imminent danger of serious bodily injury or death. But, there are certain terms we must understand:

Reckless endangerment is the conscious disregard of a known substantial likelihood of injury to the patient (Am J Forensic Med Pathol. 2009;30(1):18-22).

Reckless homicide is a crime in which the perpetrator was aware that their act (or failure to act when there is a legal duty to act) creates significant risk of death or grievous bodily harm in the victim, but ignores the risk and continues to act (or fail to act), and a human death results

Criminally negligent homicide: Negligence is a lesser crime than recklessness.

Recklessness is the conscious disregard of a substantial and unjustifiable risk. It is seeing, in the conscious part of our brain, a substantial and unjustifiable risk, and with that knowledge, choosing to follow through with our conduct.

Negligence, in contrast, is the failure to see a substantial and unjustifiable risk that we should have seen. In recklessness, we ignore the risk we see; in negligence, we dont see the risk that we should have seen.

There are five levels of intention toward harm in descending order of culpability

  1. Purpose
  2. Knowledge
  3. Recklessness
  4. At-risk
  5. Human error

Purpose is the express goal of causing harm, while knowledge is knowing that harm is going to occur.While purpose and knowledge are very similar but are different because knowingly causing harm is sometimes justified (breaking into a car to save an overheating baby), whereas a purpose to cause harm is never justified.

Recklessness is the conscious disregard of a substantial and unjustifiable risk (drunken driving). The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.

In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences (Hon’ble Supreme Court of India in the matter Jacob Mathew vs State Of Punjab &Anr on 5 August, 2005)

The Indian Penal Code (IPC) enacted as far back as in the year 1860 sets out a few vocal examples.

Section 88 of IPC in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for persons benefit.

Illustration as mentioned in Section 88 of IPC:A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Zs death and intending in good faith, Zs benefit, performs that operation on Z, with Zs consent. A has committed no offence.

Section 92 of IPC provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm. There are four exceptions listed in the Section which is not necessary in this context to deal with.

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Illustration as mentioned in Section 92 IPC:

(a)   Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Zs death, but in good faith, for Zs benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.

(b)   A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the childs guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the childs benefit. A has committed no offence.

Section 93 of IPC saves from criminality certain communications made in good faith.

Illustration as mentioned in Section 93 of IPC: A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patients death.

Negligence is simple human error. Negligence can be of two types of behavior: human error and at-risk behavior.

At-risk behavior is usually in the form of a decision to deviate from a standard or rule. It is a choice, but where the risk is not seen or mistakenly believed to be justified. At-risk behavior is the risky choice one makes but with no conscious recognition.

Human error is the unintended behavior, the slip, lapse, or mistake.

To Drift Is Human. If we criminally prosecute every healthcare provider who has knowingly deviated from a safety protocol—skipping hand hygiene or failing to label a syringe—a very large portion of our providers would be in jail rather than providing care. The propensity to drift is part of our human nature.

In all such cases we must first see three constituents of negligence:

  1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty;
  2. Breach of the said duty; and
  3. Consequential damage.

Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.

Possible punishments

  • Accept/console/ financially compensate the human error
  • Coach the at-risk behavior
  • Leave sanction/punishment for the reckless, knowledge, and purpose to cause harm.

The case in question: Looks like to be a case of at-risk behavior and not recklessness.

The author of this article is Dr KK Aggarwal, Padma Shri Awardee

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