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Criminalization of medical error: Who draws the line?

Dekker, Sidney LU (2007) In ANZ Journal of Surgery 77(10). p.831-837
Abstract
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... (More)
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. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
surgical error, moral judgement, retrospective, professional misconduct, accountability, negligence
in
ANZ Journal of Surgery
volume
77
issue
10
pages
831 - 837
publisher
Wiley-Blackwell
external identifiers
  • wos:000249164300012
  • scopus:34548428840
ISSN
1445-2197
DOI
10.1111/j.1445-2197.2007.04253.x
language
English
LU publication?
yes
id
282f26f3-336c-404b-b054-ef818b636330 (old id 689664)
date added to LUP
2007-12-07 10:52:09
date last changed
2017-11-05 04:20:56
@article{282f26f3-336c-404b-b054-ef818b636330,
  abstract     = {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.},
  author       = {Dekker, Sidney},
  issn         = {1445-2197},
  keyword      = {surgical error,moral judgement,retrospective,professional misconduct,accountability,negligence},
  language     = {eng},
  number       = {10},
  pages        = {831--837},
  publisher    = {Wiley-Blackwell},
  series       = {ANZ Journal of Surgery},
  title        = {Criminalization of medical error: Who draws the line?},
  url          = {http://dx.doi.org/10.1111/j.1445-2197.2007.04253.x},
  volume       = {77},
  year         = {2007},
}