Document Type
Student Note
Abstract
Unprecedented criminal prosecutions for medical errors have increased throughout the nation: A Tennessee nurse was charged with reckless homicide for an isolated medication error; two South Carolina nurses were charged with criminal neglect for failing to change a wound dressing for just two days; and an Ohio pharmacist was charged with involuntary manslaughter for failing to detect that a solution contained too much sodium. Introducing criminal charges for cases of typical medical malpractice, which are most often the result of system failures, will dismantle hospitals’ error-reporting systems and lead to long-term catastrophic results for patient safety. This Note applies system analysis framework, via root cause analysis, to clarify the boundaries between civil and criminal medical malpractice. Root cause analysis uses an undesired event as the starting place for analysis and considers all the contributing factors to make a bright line distinction between latent system errors, which are hidden errors between the system and healthcare provider interface, and active errors, which have a direct causal relationship between the deliberate act of the healthcare provider and the patient. Under this framework, latent system errors should not be criminally penalized. This analysis, with an emphasis on the mental state of the actor, will decrease the inappropriate criminalization of medical malpractice, so that system errors may be properly deterred from recurring. This Note will offer case illustrations to demonstrate when sufficient criminal culpability exists within the scope of medical malpractice to provide a framework that will assist judges, juries, and prosecutors in deciding when criminal charges for medical malpractice are appropriate.
Recommended Citation
Kinsey Novak Booth, Medical Malpractice as Murder? Using Root Cause Analysis as a Guiding Framework for Criminal Medical Malpractice, 126 W. Va. L. Rev. 299 (2023).