Medical Mistakes? Just Throw Everyone in Jail for Human Error, Then?


In the news: Charges against nurse igniting a debate

It sure is easier to think that medical mistakes are as simple as one person being criminal, or negligent, or incompetent. Let's assume it's that easy to assign blame to one individual who is part of a complicated system.

MADISON, Wis. – By most accounts, nurse Julie Thao helped hundreds of women giving birth during a 15-year career. But a drug mix-up that led to a death may send her to prison, frustrating fellow caregivers.

Prosecutors filed a felony charge against Ms. Thao, igniting a debate over whether medical professionals who make unintentional yet deadly mistakes should face criminal charges, on top of civil punishment from victims and regulators.

Officials say the charge against Ms. Thao reflected a series of dangerous decisions she made that led to the July 5 death of 16-year-old Jasmine Gant, an expectant mother whose 8-pound baby boy survived.

Jasmine died after Ms. Thao mistakenly gave her a dose of epidural instead of penicillin to treat a strep infection during labor. The epidural, a potent pain reliever used during childbirth, caused Jasmine to go into cardiac arrest and die within hours.

A woman is dead. But is throwing a nurse in jail the right response? Does that help prevent any other medical mistakes? Likely not. This nurse had a perfect track record. As with many systemic errors, it's a matter of chance: wrong place/wrong time for the patient and for the caregiver.

Don't get me wrong, I'm not making excuses for people. People make mistakes. Maybe she should have been fired. But throwing her in jail doesn't seem to help anyone. What about management's responsibility for quality, for making sure processes are sound and that standard work is being followed?

“Julie did not want to make an error. She did not want to hurt a patient,” he said. “There are many nurses who would say that could happen to any of us.”

Of course she didn't want to make an error. That last part of the quote is haunting… it could happen to any of us.

But the seven-page criminal complaint says Ms. Thao's “actions, omissions and unapproved shortcuts … constituted a gross breach of medical protocol.”

Among them: retrieving the epidural from a locked storage unit without a doctor's order, failing to scan the medication in a computer system that would have detected the mix-up, and ignoring large warning labels on the epidural.

Ms. Thao also injected the epidural too fast in an effort to save time, hastening Jasmine's death, and failed to double-check the patient, route, dose, time and medication, the complaint says.

It's clear that the nurse made mistakes. But again, isn't it the hospital administration's job to make sure the nurse is doing things properly? The CEO isn't facing indictment. Deming said top management is responsible for quality, I'm sure that would have applied to hospitals.

How long was this nurse, and other nurses, cutting corners to get stuff done, to work around bad processes? How many times did a nurse complain about not being able to get drugs? I bet this same set of circumstances happened before — people not following standard work — and where was administration to notice? For each safety death, there's usually plenty of near misses that might have led to process improvement, to avoid the death. If management is looking for standard work, you can pre-empt problems BEFORE a near miss or a death (google the concept of the “safety pyramid”).

Stories like this always involve an overworked or tired nurse. Where is management's responsibility to remove waste from the system or to staff properly so staffs aren't overburdened? This is the concept of “Muri” — overburdening people should be avoided in a lean system. Muri leads to mistakes.

I've seen hospitals where the staff is chronically overburdened because nobody is (yet) looking at process improvement and reducing waste. Instead, they keep the patient:nurse ratios the same. If staffing is short, instead of reducing waste, they close beds, meaning they provide less medical care to the community.

Again, I'm not making excuses for the nurse. She screwed up. But, the system screwed up. Management screwed up. The system and management aren't going on trial. If we throw everyone who ever made a mistake in jail, we'll still have mistakes and further deaths, because we aren't always fixing the system.

What's criminal is if EVERY hospital in America doesn't review this case and the circumstances involved. Do an FMEA activity and improve your process to make sure this exact same error and death doesn't occur in YOUR hospital. Otherwise, you'll have to count on being lucky. It could happen to anyone.

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Mark Graban
Mark Graban is an internationally-recognized consultant, author, and professional speaker, and podcaster with experience in healthcare, manufacturing, and startups. Mark's new book is The Mistakes That Make Us: Cultivating a Culture of Learning and Innovation. He is also the author of Measures of Success: React Less, Lead Better, Improve More, the Shingo Award-winning books Lean Hospitals and Healthcare Kaizen, and the anthology Practicing Lean. Mark is also a Senior Advisor to the technology company KaiNexus.


  1. We don’t hold corporate executives criminally responsible when their products kill people (directly or through the environment) or when their factories (or mines) kill people.

    Why hold nurses to a higher standard? Probably because they don’t have the means to defend themselves like Jack Welch types do.

  2. I don’t blame her for being overworked and the victim of an inefficient process, but she IS responsible for circumventing practices specifically designed to prevent something like this. If anything, the process should have been modified with MORE checks to prevent her from “retrieving the epidural from a locked storage unit without a doctor’s order, failing to scan the medication in a computer system that would have detected the mix-up, and ignoring large warning labels on the epidural.” Where do you draw the line between poka-yoke and efficiency? Shouldn’t we sacrifice some of this “I need it now” mentality to make a hospital procedure error-proof? I would lose it if the hospital told me “There are many nurses who would say that could happen to any of us.” YOU?!? WHAT ABOUT MY DEAD WIFE!?!

  3. I do agree that the nurse has responsibility. I don’t think it should be criminal. I agree that there should have been proactive processes and error proofing in place and that was administration’s responsibility. If by “happen to any of us” it means ALL nurses circumvent procedures, then that is also the responsibility of administration. Why not throw the hospital CEO in jail then? Every hospital in America should be evaluating their procedures to see if that kind of stuff is happening, because I bet it is.

    When one plane crashes at one airport, the aviation industry has a much better system for driving change and consistent processes to ALL airports, or so it seems.

  4. This is a major problem. Base jumping (jumping off a building or bridge with a parachute) is statistically safer than going to the hospital. The error rate is astounding. The fact is this: over 90% of the work done in a hospital is what you would consider a “work around.” We all do it – there is a way it should be done, and the way it actually gets done because the “should” isn’t working for us. Most of it is done not because of laziness or irresponsibility, it is done because people try to do the right thing, but making things worse in the long-run. Work-arounds are everywhere – important info conveyed on post-its, backup storage of key meds because the main supply isn’t accessible, little codes to shortcut writing it down everywhere – for most of us it’s just less effective, but in hospitals we are killing people every day. I for one am scared white every time I go into a hospital.

  5. Until hospitals and lawyers understand that improvement should result from mistakes and not lawsuits the system may be doomed to continue as it is now. Lawyers are readily waiting for the big payoffs from the lawsuits and hospitals are protecting themselves by never admitting they made a mistake. Like the alcoholic the first step to recovery is to admit you have aproblem.

  6. Everyone’s blaming the nurse and yes she was negligent. She did not intend to harm anyone though. The fact that she is being treated as a criminal is preposterous! To all who are pointing a finger at this woman, Remember Jesus words. “He who is without sin, cast the first stone”. No one is exempt from making mistakes in this life unless you are God or you are dead. Human beings make mistakes. In this case, the hospital’s system was flawed. Why aren’t the administrators being charged criminally? They are just as guilty as this nurse. Personally, if I was her, I would turn around and file charges against the hospital for unsound working conditions. Her life is ruined and all because the hospital like most hospitals wants to make an extra buck. I know this to be true because I have been there. I am a nurse and I wouldn’t work in a hospital if you paid me a million dollars!!!!! Hospitals are not nurse or patient friendly. They expect you to hurry and sacrifice safety for getting more work done. The patient load is too much now. Patients are sicker and require more attention. The administration is clueless about what goes on at the bedside. No wonder nurses are getting out of the field. I am a school nurse and if it ever comes down to me having to go back to work in a hospital, I will leave the field of nursing.


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