Summary: Varieties of active failure are currently the focus for compensating negligent iatrogenic injury. However, latent conditions - both error-provoking conditions and weaknesses in defences - are also potential litigation strategies.
To compensate injury caused by avoidable medical error, counsel have traditionally targeted active failures using medical malpractice litigation. This "sharp end" model of "naming, blaming and shaming" is not the only possible legal approach, and may not be the best.
Avoidable errors occur in the context of organisational latent conditions.
Not only can much be done to prevent error-prone conditions of work, but errors when they do occur can be made more visible1 []. and the adverse effect minimised.
Psychologist James Reason defines an error as "the failure of a planned sequence of mental or physical activities to achieve its intended outcome when these failures cannot be attributed to chance" 2.
In the medicolegal context, there is no agreed definition and it is unclear whether "medical error" should include the many episodes that occur daily in every hospital and that have no Causal significance. Even between trained, experienced reviewers, there is only a low level of agreement about whether 1) an adverse event has occurred, 2) such adverse event arose from substandard care, and 3) the episode had any material effect on outcome3.
"Medical error", as the term is popularly used, is an implicit judgment that is made after the fact with hindsight bias. That is to say, the judgment about Standard of Care is demonstrably influenced by whether injury has resulted.
In addition to omission of necessary acts and violation of safe procedure, medical errors can be slips, lapses or mistakes4 [].
In a slip the action conducted is not what was intended and is observable. A lapse is similar except that the error is not observable. In a mistake the action proceeds as planned but fails to achieve its intended outcome because the planned action was wrong.
For example, writing 10 times the intended dose would be a slip; failing to recall that the patient was allergic to the medication would be a lapse; prescribing the wrong drug because the diagnosis was incorrect would be a mistake.
PRACTICE POINTCauses of medical error: a. Omissions or violations b. Slips c. Lapses d. Mistakes |
Traditionally then litigation has focused on Active Failures.
However, latent conditions - both error-provoking conditions and weaknesses in defences - are also potential litigation strategies. To result in error, active failures usually combine with latent conditions that may be either error-provoking conditions or weaknesses in the defences.
Common error-provoking conditions include workload and fatigue, and deficiencies in ability, knowledge, supervision, information, communication and equipment. These conditions are, in turn, caused by unsafe management decisions and faulty organisational processes.
There is a growing body of clinical research literature that exemplifies what organisational improvements are possible in different clinical settings - acute care hospital5, emergency department6, endoscopy7, anesthesia8, perinatal unit9, and family practice10. Although these preventative measures do not currently represent community standard of care, Personal Injury litigation could be broadened to address such safety issues. Such an approach would incidentally be instrumental in helping to bring medical error rates in line with those of the aviation and aerospace industries11 [].
Weaknesses in defences include unworkable procedures, failure to check an unfamiliar dosage and switching off a malfunctioning alarm.
By analogy, ever-changing holes in slices of swiss cheese may momentarily line up and provide a bombarding hazard with a clear trajectory through the defences to cause injury12 [].
PRACTICE POINTMedical malpractice plaintiff counsel should consider ADDITIONALLY suing the healthcare facility for Latent Conditions: 1. Error-provoking circumstances 2. Weaknesses in defence against avoidable error |
Although it is enshrined in case-law that hospitals are generally not vicariously responsible for the negligent errors of the physicians from whom they contract services, the institution's credentialing activities may be liable. In Canada, for instance, the Public Hospitals Act requires that a Medical Advisory Committee (MAC) of physicians regularly assess the training and ability of all physicians who have admitting privileges and surgical privileges.
If iatrogenic injury occurs because a physician or surgeon is insufficiently trained in a particular procedure or is impaired, the Hospital may be liable because of incompetent credentialing.
Copyright © 2009 Electronic Handbook of Legal Medicine