TY - JOUR
T1 - Criminalization of medical error: Who draws the line?
AU - Dekker, Sidney
PY - 2007
Y1 - 2007
N2 - As stakeholders struggle to reconcile calls for accountability and pressures for increased patient safety, criminal prosecution of surgeons and other health-care workers for medical error seems to be on the rise. This paper examines whether legal systems can meaningfully draw a line between acceptable performance and negligence. By questioning essentialist assumptions behind 'crime' or 'negligence', this paper suggests that multiple overlapping and partially contradictory descriptions of the same act are always possible, and even necessary, to approximate the complexity of reality. Although none of these descriptions is inherently right or wrong, each description of the act (as negligence, or system failure, or pedagogical issue) has a fixed repertoire of responses and countermeasures appended to it, which enables certain courses of action while excluding others. Simply holding practitioners accountable (e.g. by putting them on trial) excludes any beneficial effects as it produces defensive posturing, obfuscation and excessive stress and leads to defensive medicine, silent reporting systems and interference with professional oversight. Calls for accountability are important, but accountability should be seen as bringing information about needed improvements to levels or groups that can do something about it, rather than deflecting resources into legal protection and limiting liability. We must avoid a future in which we have to turn increasingly to legal systems to wring accountability out of practitioners because legal systems themselves have increasingly created a climate in which telling each other accounts openly is less and less possible.
AB - As stakeholders struggle to reconcile calls for accountability and pressures for increased patient safety, criminal prosecution of surgeons and other health-care workers for medical error seems to be on the rise. This paper examines whether legal systems can meaningfully draw a line between acceptable performance and negligence. By questioning essentialist assumptions behind 'crime' or 'negligence', this paper suggests that multiple overlapping and partially contradictory descriptions of the same act are always possible, and even necessary, to approximate the complexity of reality. Although none of these descriptions is inherently right or wrong, each description of the act (as negligence, or system failure, or pedagogical issue) has a fixed repertoire of responses and countermeasures appended to it, which enables certain courses of action while excluding others. Simply holding practitioners accountable (e.g. by putting them on trial) excludes any beneficial effects as it produces defensive posturing, obfuscation and excessive stress and leads to defensive medicine, silent reporting systems and interference with professional oversight. Calls for accountability are important, but accountability should be seen as bringing information about needed improvements to levels or groups that can do something about it, rather than deflecting resources into legal protection and limiting liability. We must avoid a future in which we have to turn increasingly to legal systems to wring accountability out of practitioners because legal systems themselves have increasingly created a climate in which telling each other accounts openly is less and less possible.
KW - surgical error
KW - moral judgement
KW - retrospective
KW - professional misconduct
KW - accountability
KW - negligence
U2 - 10.1111/j.1445-2197.2007.04253.x
DO - 10.1111/j.1445-2197.2007.04253.x
M3 - Article
C2 - 17803543
SN - 1445-2197
VL - 77
SP - 831
EP - 837
JO - ANZ Journal of Surgery
JF - ANZ Journal of Surgery
IS - 10
ER -