What about punishment?

During these couple of weeks following our wrong-side surgery, a number of people have asked me if we intend to punish the surgeon in charge of the case, as well as other people in the OR who did not carry out the expected time-out procedure. My initial and immediate reaction has always been, "No, these people have been punished enough by the searing experience of the event. They were devastated by their error and distraught to think that they could have participated in an event that unnecessarily hurt a patient. The surgeon immediately reported the error to his Chief and to me and took all appropriate actions to disclose and apologize to the patient, as well as participate openly and honestly in the case review."

This reaction was supported by one of our trustees, who likewise responded, "God has already taken care of the punishment." But another trustee said that it just didn't feel right that this highly trained physician, "who should have known better," would not be punished. "Wouldn't someone in another field be disciplined for an equivalent error?" this trustee asked.

This is a healthy debate for us to have, but a comment yesterday made me realize that I was over-emphasizing the wrong point (i.e., the doctor's sense of regret) and not clearly enunciating the full reason for my conclusion. The head of our faculty practice put it better than I had: "If our goal is to reduce the likelihood of this kind of error in the future, the probability of doing that is much greater if these staff members are not punished than if they are." I think he is exactly right, and I believe this is the heart of the logic shared by our chiefs of service during their review of the case. Punishment in this situation is more likely to contribute to a culture of people hiding their errors rather than admitting them. And it is only by having a culture in which people freely disclose errors that the hospital as a whole can focus on the human and systemic determinants of those errors. I believe this conclusion is supported by most of the advanced thinkers in this field, but I ask them and others of you to comment on that theory of the case.

But, then we are left with a follow-on question: Under what circumstances does the need to punish someone trump the other concerns about institutional learning and a no-blame environment? Beyond the obvious case in which a doctor or nurse intentionally harms a patient -- where no one would doubt the application of punishment -- I am afraid that the answer is, "It depends."

We had a circumstance a couple of years ago in which a doctor intentionally left the OR to consult on another patient while his first patient was in mid-surgery. His logic was that there was a natural break in the procedure during which a tourniquet had to be released for a period of time to permit a limb to reprofuse, and that there was no risk to the patient by his absence. However, he left no attending physician in the room, only residents -- a clear violation of the rules. No harm whatsoever befell the patient, who in fact was ultimately very grateful to this surgeon for completing a very complicated procedure.

Upon review of this case, our Medical Executive Committee felt that the violation of an important rule was so clear that the surgeon should be penalized, and he was suspended for a period of time and the case was reported to the state licensing board.

A friend today asked me what would distinguish a case like that from the recent one in which our surgeon failed to conduct a time-out before beginning the operation. Honestly, it may have been the fact that a case had recently occurred at another hospital in town, where a surgeon left the OR and did put a patient more at risk, and where the publicity concerning that event was widespread. In short, everyone's sensitivity had been raised. But I think the MEC response had more to do with their conclusion that the surgeon knowingly and intentionally left the room unsupervised, feeling that the rule didn't really need to apply to him in that case.

Is that distinguishable from failing to conduct a time-out before a surgical case? I guess intent should matter. In the more recent case, the surgeon clearly did not intend to skip the time-out. His mind was on other things, and he did it inadvertently. While that is, in great measure, his fault, it also suggests to us hospital leaders that there is a flaw in the training we provide or the procedures we implement. In other words, we participated in this error by not having the wisdom to design a sufficiently fail-safe system that would protect the surgeon (and of course, the patient) from inadvertently missing the time-out.

Please understand that I am not saying this to absolve the surgeon from his responsibility. I am saying that to reiterate the point I make above: We should err on the side of encouraging disclosure and honesty about errors so we can properly do our job to re-design systems of care to reduce the chance of error.

But -- while knowing this may appear to contradict what I just said -- there might be cases in the future that are remarkably similar to the one we just had where we as a management team decide that a punishment should be meted out. It is not clear to me that we can have exact rules, in advance, that would draw the distinction. I think this is one area were we must maintain the right to exercise our discretion depending on the particular circumstances of the case.

As always, your thoughts are welcome.