Kentucky has recently made history by becoming the first state in the United States to decriminalize medical errors. This groundbreaking decision has sparked a debate among healthcare professionals about the implications of such a move.
Overtly, it seems to be a step in the right direction. But the timing of the legislation and indeed, the actual necessity of such law begs the basic question of why such a move was needed in the first place.
Medical errors are unfortunately common in the healthcare industry, with studies showing that they are among the leading cause of death in the United States. The fear of criminal prosecution has often led healthcare providers to cover up mistakes, rather than reporting them and learning from them.
Critics of this decision argue that decriminalizing medical errors may make healthcare providers less cautious and responsible in their practices. They fear that removing the threat of criminal prosecution might lead to an increase in negligent behavior and patient harm.
However, supporters believe that the fear of criminal prosecution will not affect medical errors from taking place. They are inherent to a complex healthcare system in which difficult decisions are made with limited information.
The issue is not whether criminal prosecution will affect medical errors. The issue is why legislators conflate the threat of criminal consequences with the likelihood of medical errors.
Medical errors, by definition, are an unavoidable part of medical care. Without errors, there is no practice of medicine. Criminalizing errors will only stigmatize errors to the point that they will be covered up, deflected, or manipulated in a way to avoid the pretense of culpability.
This law is presented as an attempt to promote a culture of safety and learning in the state of Kentucky. In practice, it remains to be seen how this decision will impact healthcare practices in Kentucky, and whether other states will follow suit.
Medical errors have long been the purview of administrative courts and regulatory bodies. Each state has a licensing agency that oversees the practice of medicine. Within these bodies, medical professionals self-regulate. Most medical errors are evaluated as just errors. If innocuous and unavoidable, necessary corrective actions will take place. If an error is truly avoidable, then the ramifications will be upheld within the scope of the administrative body.
Criminality hardly played any role – until lately, when we saw many high profile cases of medical errors investigated as crimes. The most famous of which took place in Tennessee, a state just south of Kentucky.
RaDonda Vaught, a former nurse from Tennessee was convicted of two felonies in 2022 due to a fatal medication error. The case incited considerable concern among nurses regarding the criminalization of medical mistakes. Though she did not face imprisonment and her conviction will likely be expunged upon successful completion of her probation, the tone was set: medical errors are fair game for criminal prosecution.
In such an environment, where errors are inherent and can occur at any time – even to the most tenured of medical professions – why would anyone risk criminal prosecution?
In hindsight, it seems absurd, almost Puritanical to conflate medical errors with criminal liability. Yet, this is the state of modern medicine.
The Kentucky law is a welcomed turn toward common sense. We hope it serves as a bellwether. And while it is presented as a means to encourage transparency in healthcare, it serves a more practical purpose as well: it is a recruiting tool.
The state of Kentucky is currently experiencing a shortage of nurses, and it is imperative that those in the profession do not feel compelled to leave due to fears of criminal charges stemming from medical errors. According to a release by the Kentucky Nurses Association, “Fear of criminal prosecution can impede voluntary reporting and cooperation—key elements necessary for implementing changes within systems and processes aimed at preventing future errors.”
There you have it: A statement as clear as day. When you protect medical professionals against legal encroachment through the specter of criminal prosecution, you make them more likely to want to practice medicine there.
It is odd that such a law is even necessary. It is downright scary that healthcare has reached a place where such a law is seen as a recruitment tool.
