Criminalization of medical error: who draws the line?

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Title Criminalization of medical error: who draws the line?
Author Dekker, Sidney
Journal Name ANZ Journal of Surgery
Year Published 2007
Place of publication Australia
Publisher Wiley-Blackwell Publishing Asia
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.
Peer Reviewed Yes
Published Yes
Alternative URI http://dx.doi.org/10.1111/j.1445-2197.2007.04253.x
Volume 77
Issue Number 10
Page from 831
Page to 837
ISSN 1445-1433
Date Accessioned 2011-03-07
Date Available 2011-05-30T06:58:02Z
Language en_AU
Faculty Arts, Education and Law
Subject Health Information Systems (incl Surveillance)
URI http://hdl.handle.net/10072/38892
Publication Type Journal Articles (Refereed Article)
Publication Type Code c1x

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