How the criminalization of medical error hurts doctors—and their patients

By Jules Murtha | Fact-checked by Barbara Bekiesz
Published October 21, 2022

Key Takeaways

  • New York, Florida, California, and other states have laws which assert that anything said by healthcare professionals (HCPs) involved in a possible medical error may be used against them in court.

  • HCPs may feel forced into silence due to fear of litigation, which can prevent them from analyzing and addressing the potential error—as well as from providing patients and families with meaningful contact post-incident.

  • Experts say physicians and patients would fare better if doctors were given the space to discuss and pinpoint possible harms they caused without the threat of their words being used against them in cross-examination.

There’s a lot at stake in cases of medical error. Patients may be harmed, and doctors may be tried for medical malpractice—among other unwanted outcomes.

But what happens when physicians who have possibly made errors aren’t allowed to talk about them? And what can they do to avoid making errors?

The complexity behind medical error

Medical errors are a leading cause of death in the US. How do they happen?

According to an article published by StatPearls, it’s difficult to pinpoint consistent causes of medical errors.[] Even if the cause is located, effectively addressing it can be challenging, as the circumstances may differ in each case.

Regardless of the specific causes, there are two ways to classify medical errors:

  1. Those that occur as a result of inaction (omission). An example is failure to secure a gurney before transferring a patient.

  2. Those that occur as a result of wrong action (commission). Wrong actions may include administering a medication to a patient who has a known allergy to it.

Some experts believe there’s more to medical error than meets the eye. To get a better idea of how related laws affect doctors and their patients, MDLinx spoke with Antonio Dajer, MD, emergency medicine physician and assistant professor of emergency medicine at Weill Cornell Medicine. He believed that calling such occurrences a “mistake” or “error” may not do justice to the circumstances.

“The complexity of medical cases and the possible combinations of different factors—rare things on top of rare things on top of time pressure or unusual presentations, or who knows what other distractions—inevitably generate suboptimal outcomes,” Dr. Dajer said.

According to Dr. Dajer, it’s impossible to avoid the potential for occasional, undesirable outcomes when it comes to any human endeavor—no matter who’s running the show.

"I’ve seen brilliant doctors, and we’ve all made mistakes."

Antonio Dajer, MD

The issue for Dr. Dajer, among other doctors in affected states, is the lack of safe spaces to discuss and address medical error as it occurs. The barrier? Legislation.

The price of gag laws

There are laws in some states that make it very difficult for doctors to talk about their mistakes—literally. This is the reality in New York, Florida, California, and other states that keep clinicians silent about such incidents due to potential litigation, according to a 2022 StatNews article.[]

New York State Education Law 6527, for example, calls on hospitals and healthcare facilities to investigate potential errors with the help of peer and quality review committees. But—and here’s the rub—the law also states that no person involved in the error is allowed to speak about what happened, or even attend investigative meetings, because what they say can be weaponized against them in court.

In Dr. Dajer’s opinion, this is completely counterintuitive to any kind of positive change. He believes that one must be able to safely talk with the HCPs who made the error about what happened in order for them, and others, to learn from it.

“It’s like asking a pilot, ‘What was it about the conditions that night—with the rain and the winds and your aircraft—that caused you not to make the best possible decision?’ The same thing has to happen with medicine,” he said.

Without this process, doctors lack the opportunity to critically assess their approach, which could help to prevent future errors.

“The punishment of your own psychic well-being, on top of the fact that no one else is learning from your mistake the way they should—putting future patients at risk—is immoral,” Dr. Dajer said.

"It damages patients, it damages providers, [and] it damages colleagues."

Antonio Dajer, MD

Tips for avoiding medical error

Dr. Dajer felt that effectively addressing medical errors rests on the ability for doctors to talk about what happened and how they might take a different course of action in the future, without fear of the consequences related to litigation.

As legislation prevents this process from occurring in some states, there are a few strategies to employ that could help reduce the chances of causing medical errors.

According to the StatPearls article, doctors can promote safety by:

  • Carefully labeling medications that get delivered in bulb syringes, basins, and medication cups

  • Cutting down the time it takes to deliver abnormal test results

  • Setting up a “quiet zone” delegated to organizing medications for administration

  • Taking steps to improve the culture of safety at their workplace

What this means for you

Laws in some states prevent doctors from speaking about medical errors they have made, because anything they say or write could be used against them in court. As a result, these clinicians not only bear the stress of causing harm; they also may not be able to process what led to their mistake. Experts believe a better legislative balance allowing physicians to safely address their actions in the wake of medical error will benefit clinicians and patients. Until that’s achieved, you can help decrease the likelihood of medical errors by promoting safety protocols.

Read Next: Real Talk: When you make a medical error
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