Noise Part 1
The Criminal Prosecution and Jailing of a Pharmacist
CNN recently interviewed a former hospital pharmacist whose "mistake" had killed a two year old hospital patient. The occasion was the pharmacist's recent release from jail after he served six months for Emily Jerry's death. (See Video) While working at one of America's premiere children's hospitals, the pharmacist failed to catch a pharmacy technician's error. A chemotherapy drug was compounded with sodium chloride at 23% concentration rather than the 0.9% that had been prescribed. (See findings)
The error apparently occurred on February 26, 2006. The next year, on August 9, 2007, the pharmacist was indicted for reckless homicide and involuntary manslaughter. (Court Docket [search for the last name "Cropp."] ) On May 13, 2009, he entered a plea and began a six month jail sentence on August 8, 2009.
This case has attracted widespread attention of the media and the patient safety community. Dr. Robert Wachter, a leader in patient safety nationally, penned a blog piece criticizing the decision to jail this pharmacist. (Jail Time for a Medical Error)
"[T]he criminal system should have absolutely no role in dealing with medical errors unless we are talking about cases of sabotage, or of willful and recurrent violation of safety rules when harm was foreseeable. By all reports, Eric’s case met neither of these criteria."
http://community.the-hospitalist.org/blogs/wachters_world/archive/2009/11/26/jail-time-for-a-medical-error-redux-the-case-of-eric-cropp.aspx.
"Part of my reason for arguing so strongly that we need to begin enforcing our own safety standards – particularly when we're dealing with no-brainers like hand hygiene – is that the public is beginning to see our reflexive invocation of “no blame” as in-credible – as evidence of our unwillingness to address performance gaps, even when they are egregious. I worry that the more we appear to be looking the other way, the more likely we are to experience imposed solutions: by regulators, through tort law, or, most troubling, in criminal courts. Parenthetically, this issue feels a lot like our debate over healthcare conflicts of interest, particularly gifts and payments to doctors by drug and device makers. In both cases, our failure to police ourselves has literally invited outside intervention."
(Jail Time for a Medical Error, Redux: The Case of EC).
Dr. Michael Cohen of the Institute for Safe Medication Practices has written and spoken out against the criminal prosecution.
July 13, 2009, Letter to Judge
August 21, 2009, An Injustice Has Been Done
August 27, 2009, Ohio Government Plays Whack-A-Mole
December 3, 2009, EC Weighs in on the Error that Sent him to Prison
In the CNN video run this morning, Dr. Cohen states:
"People are going to be afraid to come forward and
identify problems that they have been involved with
because of fear for losing their license or in this
case even having criminal charges brought
against you."
The criminal case received wide publicity in USA Today, the Cleveland press, and elsewhere. In memory of Emily Jerry, Ohio enacted Emily's Law regulating pharmacy technicians. Foundation activity was undertaken. See http://www.emilyslaw.org/, http://flaame.org/, and Emily Jerry Foundation.
In researching this on the internet, I tripped across the report of licensing committee on this pharmacist's errors. According to that report, after this pharmacist made that fatal mistake on February 26, 2006, he made 14 additional mistakes prompting incident reports on April 26, 2006; July 18, 2006; July 25, 2006; July 25, 2006; August 18, 2006; September 19, 2006; November 13, 2006; November 16, 2006; November 18, 2006; December 12, 2006; December 15, 2006; December 26, 2006; February 3, 2007; and February 4, 2007.
The problem is hardly solved. A simple search of PubMed for "medication errors" yields over 500 articles published in each of the past 5 years. Enormous energies have failed to solve this problem. Is this problem really impossible to solve? While my initial instincts are to agree with Dr. Wachter and Cohen that "honest mistakes" should not be criminalized, My attempts to obtain factual information about the case have not yet produced any transcripts. Was this a simple honest mistake or was it more? I am trying to obtain more information about the case. The claim that the Jerry family filed a civil lawsuit and settled it for a particular amount was widely reported in the press and blogs. However, my search of the online database of the Cuyahoga County Court reveals no such lawsuit.See: Cuyahoga County Court The misreporting of a fact that is so easy to check raises questions about the reliability of the information reported on the case.
In any case, the number of published articles on criminal prosecutions of healthcare providers is growing. (Here.) These cases have generated noise and attention. Wachter's observation echoes:
"I worry that the more we appear to be looking the other way,
the more likely we are to experience imposed solutions:
by regulators, through tort law, or, most troubling, in
criminal courts.... [O]ur failure to police ourselves has
literally invited outside intervention." (Id.)
Undeniably, this criminal prosecution has attracted attention. Television stories and newspaper articles have been devoted to it. Cohen and Wachter, two of patient safety's leading lights have devoted their energies to the subject. Whether the criminal prosecutions are, on balance, either justified or good, they have focused attention on an important problem.
Have the criminal prosecution and jailing of this pharmacist made us safer?
For too long, patients injured by medical negligence have been ignored by the medical profession and the media. The deaths of the Emily Jerrys of the world are not considered newsworthy. Had there been no criminal prosecution, few would have ever heard of her. Does anyone believe that if the Jerry family had complained to the press about Emily's death, it would have been covered?
Rarely do stories about particular medical errors appear in the press. The ones I have seen have been quite informative. Congressman, Rep. John Murtha recently died shortly after a routine surgical procedure. The reports on the surgical complication leading to his death have gone into detail about the kind of complication he suffered and how it can be detected earlier. Much air time has also been devoted to the massive overdose of heparin given to Dennis Quaid's twins. While these stories are rare, media coverage directs helpful scrutiny to the underlying problems.
In the criticism that Wachter and Cohen direct at the prosecution of Emily Jerry's pharmacist, they appeal to our sense of fairness. After all, what is accomplished by prosecuting this pharmacist for making a mistake? The prosecution fails to address the underlying "systems issues" that contributed to this error. The criminal process obscures those "systems issues." The pharmacist is a human being like the rest of us. However, whether this pharmacist deserved to be charged and prosecuted depends on far more facts than either Wachter or Cohen discuss or that I have been able to find. Nevertheless, few believe that citizens should be jailed for being human, i.e. making a mistake in good faith. Are Wachter's and Cohen's criticisms of this prosecution justified? How would they have reacted if the pharmacist had been sentenced to a longer prison term? What would they have said about a ten or twenty year sentence, life in prison or even the death penalty? Can we imagine?
Was February 26, 2006, the first time this kind of mistake had killed a patient like Emily Jerry? That suggestion is laughable. Medication errors such as this one occur daily in America. People die. Had prior occurrences of this error been publicized, perhaps the problem would have been solved sooner and the medication error of February 26 could have been avoided. Emily Jerry would still be alive.
If the pharmacist mattered, then so did Emily Jerry. Much of what Wachter and Cohen have said about the unnecessary damage done to the pharmacist's life seems true. Why have they not expressed outrage over Emily Jerry's death?
Who was Emily Jerry? What did she want to do when she grew up? What kind of food did she like? Did she have any favorite songs or games? Did she like animals? What special things would she say to her mother or father? The family had planned a trip after this treatment. Where were they going?
Did Emily Jerry matter? Emily Jerry did not get out of jail after six months like the pharmacist. Emily Jerry will not get out of jail in five, ten or even twenty years. Emily Jerry will not even have the chance to spend the rest of her life in jail. Emily Jerry, well, Emily Jerry got the death penalty. It was an accident, but she got the death penalty.
Did Emily Jerry matter as much as the pharmacist? Shouldn't the consequences she suffered matter to us as much as the consequences suffered by the pharmacist?
How would the rest of us feel if someone kidnapped our child and kept her for six months? Would we be outraged? Suppose our child had been kept for five or ten or twenty years. How would we feel then? How would we feel if someone gave our child the death penalty? Would we feel anguish?
How would we feel when we learned that this error and others like it had happened not just once before, but hundreds and thousands and millions of times? How would we feel if we learned that in those prior cases, the parents had tried to call attention to the problem, but the medical profession and the media would not listen. When the parents stood up, the hospital issued a press release denying any direct responsibility for the death of the child but sympathizing with the family over the loss.
If Emily Jerry matters, then we should be able to learn from her death. We should be able to use the information to prevent this from ever happening again. Can we?
Did I just miss the stories in the papers? Where were the articles about Emily Jerry's death when it occurred? Where were the stories about the grief stricken parents? Where were the explanations about how to prevent this kind of incident from ever happening again? I have not been able to find any stories about her until the legal proceedings began. If I missed one, please let me know.
A malpractice lawyer, I view the legal system as a crude tool. The courts chronicle most of society's problems by resolving the resulting conflicts. When a particular type of problem appears repeatedly in the courts, a larger societal problem is being called to our attention . For decades the legal system has been telling organized medicine of the problem of medical errors. It did not recognize the problem until the famous report from the Institute of Medicine. Sadly, with one exception, organized medicine's response to the court system has been typical of all large American industries: attack the messenger.
Sadly, I do not hear the press telling us that this beautiful two year old girl or her parents mattered. I do not hear the medical community, the hospital, or even the patient safety community telling us that Emily and her parents matter. She did matter. Had there not been criminal charges, I would never have heard about Emily Jerry. Isn't that the problem?
How many children like Emily Jerry die every day? We do not hear about them. We may learn of them if, and only if, the legal system becomes involved. It is a good thing that we heard about her and this medication error. If this criminal prosecution saves one, or ten, or a hundred lives, we will be better off.
Without our courts, no attention would have been called to this case. With the attention comes scrutiny, study, progress, and, hopefully, fewer medication errors and dead children like Emily. Isn't that the goal? Didn't the legal scrutiny trigger the attention that reduce medical errors. The courts cannot be all bad. If not for the courts, we would not have even heard the name Emily Jerry.
We could accomplish the same end without a criminal prosecution if the press would report on more medical errors as being newsworthy in and of themselves. No lawsuit was needed to discuss the death of Congressman Murtha. No lawsuit was needed to discuss the overdose given to the Quaid children. Making progress on patient safety requires a public discussion. Unfortunately, these incidents are rarely reported unless a celebrity or a lawsuit is involved.
Emily's death was not just a matter of academic concern. Emily was a child as all of us were children. Emily was our future. Emily was a beautiful girl who might have grown up to be a doctor or pharmacist. We cannot survive as a society if we do not cherish and protect our children. Emily Jerry deserved our protection.
We failed Emily Jerry and her parents. Despite thousands of medical articles on medication errors, despite the best efforts of many safety activists, we failed to solve this problem prior to February 26, 2006. We failed. As a result, Emily Jerry died. The failure belongs to all of us. We will find a solution to this problem when all of us, the media, organized medicine, and the patient safety community care as much about Emily Jerry's death, and the deaths of thousands of other children, as we care about the pharmacist spending six months in jail.
You see, Emily mattered.
Coming next:
Noise Part 2
Civil Law
