Legislative strategies emerging to address criminalization for unintentional medical errors.

Representatives from WNA and other members of a statewide coalition continue to meet for the purposes of defining, clarifying and recommending changes to a variety of state statutes. This issue emerged last Fall 2006 when the Wisconsin Department of Justice (DOJ) filed criminal charges against a Madison RN who in July 2006 was involved in an unintentional medical error that resulted in the death of her patient. The DOJ staff had legal access to a variety of regulatory agency, institutional reports /documents and verbal statements describing the details of the incident. In addition, DOJ interpreted one of the state statutes as allowing them to pursue criminal prosecution of the RN.

There are at least five statutes in need of amending in order to restore the trust that is necessary for an effective culture of patient safety within our health care settings. These statutes involve redefining and re-clarifying non-criminal conduct and criminal conduct. In addition, safeguards are needed for facility quality improvement programs and practices in regards to investigations and summaries along with access of information collected by regulatory agencies. From a patient advocacy perspective, there is a need for an injured patient or guardian to have ability to file a malpractice claim under the Patient Compensation Fund.

The specific statutes WNA and others want addressed are as follows:

1. Criminal conduct--Amend State Statute 940 (Crimes against life) by including the language found in Administrative Code HFS 13 that describes what abuse and neglect is and is not. This clarifying language, "absence of reckless conduct or criminal intent" as not criminal conduct and therefore could not be misinterpreted by the prosecution.

2.a. Peer Review and Administrative Information--Amend stat. 146 (Health care services--confidentiality) to prohibit peer review records from being used in criminal actions as proof of the conduct. Peer review, quality improvement activities and any other information (written or spoken) that a regulatory agency requires a health care provider or facility to produce will not be admissible in a criminal action case as proof of the conduct.

2.b. Peer Review and Administrative Information--Amend stat. 904 (Evidence & Relevancy) by adding conditions where the information collected by state regulatory agencies could not be used as proof of the conduct in a criminal action against a health care provider or facility.

3. Encourage Quality Improvement Activities--Amend stat. 146 (Health care services--confidentiality) by adding "person" to the list of others that are involved in reviewing or evaluating the services provided by health care providers shall keep a record of their investigations ... and conclusions. This provides a culture of openness and analysis of concerns and/or problems impacting quality and safe care.

4. Insurance Coverage for Medical Malpractice--Amend stat. 655 (Patient Compensation Fund) by including that any underlying medical malpractice policy issued under stat. 655 covers injuries that result from conduct determined to be criminal except for the criminal conduct excluded from the PCF coverage in stat. 655 (Intentional Crime).

Next Steps

As nurses we will need to be perceived by the public, legislators and the media as not wanting "blanket immunity" for all health care provider actions. We have all heard about those bad actors who for whatever reason want to intentionally cause harm, injury or death to a patient. This legislative strategy will not exempt these individuals. This legislative strategy is about assisting RNs and other health care providers to feel comfortable and assured that the information provided regarding a medical error or near miss will be accepted and framed within a "best-practice" patient safety environment and in the absence of criminal prosecution.

It is our hope that interested legislators will take this on shortly after the 2007-2009 Biennial Budget is approved.

An update will be provided at the 2007 WNA/WSNA Annual Convention October 18--20 in La Crosse.