What Medicine Could Teach Our Flawed Justice System

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Twenty-three years ago, the Dana-Farber Cancer Institute, a prestigious Harvard teaching hospital, killed a 39-year-old woman undergoing experimental breast cancer treatment by giving her massive overdoses of a chemotherapy drug.

She died as she was preparing to leave the hospital and go home to her two daughters, aged 7 and 3. The doctors didn’t listen to her warnings that there was something terribly wrong, and they missed tests indicating heart damage.

The medication error (four times the intended dose) was not discovered until a routine data check by a clerk months later. A second patient had received a similar overdose during the same week. She barely survived.

Betsy Lehman. Courtesy of Betsy Lehman Center (still from video)

The fatal victim was Betsy Lehman, a respected health reporter for the Boston Globe, and the media reaction was apocalyptic.

There were 28 front-page articles damning the hospital. The Globe editorialized that the mistake wouldn’t have been made by a first-year medical student. A Globe columnist wrote that the overdoses “would make the Three Stooges look like brain surgeons.”

Sometimes, it seems that the criminal justice system generates a comparable front- page tragedy every day—horrific outcomes that no one wanted, inflicting death and trauma.

An officer shoots a deranged schizophrenic in front of his family. An innocent man is wrongly convicted, while the real perpetrator goes free and finds more victims.  Dangerous killers are released while harmless low level arrestees wait for years in jail unable to post money bonds, then hang themselves.

The aftermath of these events has become as stylized as Kabuki theater. There are cries for prosecution or discipline of the cop or Assistant District Attorney at the sharp end of the system. This happens, or it doesn’t.

And that’s where things usually end. “Nothing more to see here, move along” becomes the organizing principle.

Until the next time.

The Lehman tragedy, as one writer put it, “became patient safety’s Chernobyl (and) helped lead to the recognition that medical errors are most often caused by system-wide failures rather than by an individual who goofs.”

People thought that if this could happen at Dana-Farber, and to a savvy health reporter, it could happen anywhere, and to anyone.

The Lehman tragedy won’t help us understand the flaws in the criminal justice system if we insist that criminal justice is an issue simply of controlling the streets.

But it provides invaluable lessons if we start to take the word “safety” in “public safety” seriously.

The safety we’re talking about here is everyone’s safety, and it will have to be co-produced by criminal justice operators and the communities they serve.

We want to be safe from violent crime, but also from wrongful convictions.

We want acutely ill mental patients to be safe from police shootings, but we also want passing pedestrians and intervening cops to be safe from armed and poorly medicated schizophrenics who should never have been left untreated in the first place.

We want everyone in our communities to be as safe as possible from the collateral damage that blinkered efforts at crime control inflict. That means being safe from assignment to a reduced form of citizenship in which residents are injured by fruitless, harassing stops and frisks, or extended pretrial detentions, and in which young men are buried under a “permanent CV“ that compiles bogus misdemeanor arrests and makes  employment impossible.

Dana-Farber’s initial response to the media firestorm following Betsy Lehman’s death was no model of deftness. Wide discipline was handed out; internal reports were leaked; doctors filed libel suits; lawyers feuded. There was a period of chaos.

But ultimately under public and regulatory pressure, the hospital shifted its entire organization. It began to focus not on the “who?” behind the medication errors but on the “why?”

Dana-Farber recognized that safety should be a core property of its system of care. It gave senior clinical leaders safety responsibility.  It recognized a need for a relentless focus on risk, error and harm, and nourished its error-reporting system.

The institute involved front-line practitioners in the design of protective systems: in all-ranks, all-stakeholders, teams that included the community and the families of patients.  It recognized safety as something “co-produced” by medical staff and patients.

It made transparency a central goal and, most importantly, it recognized that safety work is never finished; that nothing is permanently “fixed” and that continuous work on quality improvement is the only route to true safety.

This thinking is incubating in criminal justice.

The National Institute of Justice’s Sentinel Events Initiative has promoted an exploration of all-stakeholders (and all-ranks) non-blaming reviews of adverse events and “near misses” and “good catches” where only last-minute luck or exceptional skill avoided a tragedy.

The Police Foundation has launched a Law Enforcement Officers Near Miss utility that tracks the lessons of safety incidents. The National Commission on Forensic Science has called for routine “root cause analysis” of forensic science errors.

And this is a movement occurring not just at the 30,000-foot level nationally, but also at the grass roots.  The City of Tulsa, for example, now recommends that police conduct non-disciplinary peer reviews of critical incidents. There are signs everywhere that versions of the painful lessons Dana-Farber learned are being incorporated into criminal justice.

But there is one tantalizing product of the Lehman tragedy that criminal justice has not yet emulated and might consider: a state or local system-oriented center for carrying out the all-stakeholders work of producing criminal justice safety.

The Betsy Lehman Center is now a small Massachusetts state government agency devoted to patient safety.  (The budget is about $1.5 million.)

Its goals are to:

  • Identify and disseminate information about evidence-based best practices to reduce medical errors and enhance patient safety;
  • Develop a process for determining which evidence-based best practices should be considered for adoption;
  • Serve as a central clearinghouse for the collection and analysis of existing information on the causes of medical errors and strategies for prevention; and
  • Increase awareness of error prevention strategies through public and professional education.

And, strikingly, the Lehman Center’s enabling legislation not only provides a place where practitioners and community stakeholders can focus on safety, it provides a safe place.

Information, accounts, and data collected by or reported to the Lehman Center are not public records, and accordingly not subject to FOIA requests. They are confidential: not subject to subpoena or discovery or being introduced into evidence in any judicial or administrative proceeding, except as otherwise specifically provided by law.

What if we had these in criminal justice? Modest state (or city, or county, or regional) agencies devoted not to punishing the last criminal justice disaster, but to learning how to prevent the next one?

The financial costs of criminal justice mistakes are, at least at this point, nothing like those involved in medical malpractice, but they are not trivial. Cutting the risk of paying for repeated avoidable errors in the future probably makes economic sense.

But there’s more to it than that. Whether a criminal justice mistake costs money or not, it does harm, and it erodes public trust in the law and its officers.

Just as a hospital’s mission is healing, not avoiding lawsuits, the criminal justice system exists to dispense justice, not to evade civil judgments.

Criminal justice life provides many “teaching moments”—good catches, near misses—high frequency/low impact events that don’t implicate worries about damage suits.

Even so, there’s no sense in pretending that the threat of damage suits, professional discipline, and even criminal prosecution does not chill productive discussions of the preventable unintentional slips and errors built into the system.

No system can survive without punishing its conscious rule-breakers and compensating their victims.  Those things shouldn’t stop. (The fact is, there are places where there probably aren’t enough disciplinary reactions.)

But explicitly disentangling the forward-looking safety function from disciplinary and punitive processes by giving it a specific place can be an important step in the right direction.

The investment isn’t huge. The pay-off—in terms of avoiding death, trauma, public alienation, (and, yes, multiplied liability payments for future repetitive failures)—might be enormous.

And, paradoxically, providing some measured confidentiality could even increase net transparency too.

Events that might otherwise be shrugged off or buried can be studied (as the NTSB studies transportation disasters) with confidentially gathered information, and their lessons and data then reported to the public in aggregated or carefully anonymized form.

Maybe the most interesting lesson of the Lehman scandal for readers of The Crime Report is the decisive role that the media firestorm over Lehman’s death played in launching the modern patient safety movement.

There was plenty of hunting for scapegoats and villains in the aftermath of the Lehman overdoses.

But the cumulative Lehman coverage, because of the depth and duration of the investigation provided a sustained interrogation of an august institution and its systems. It energized a paradigm shift by teaching people to see that these tragedies aren’t single-cause events created by lone “bad apples.”

Coverage of the next exoneration that comes along could move the criminal justice system in the same way.

James Doyle

If anything is clear from the struggle for safety in industry, aviation and medicine it is that we can’t improve things while acting within our silos. Cops, lawyers, corrections and mental health practitioners, crime survivors, and their communities need a place to work on these things together:  to make criminal justice something done with, not “for” or (as it often seems) “to” the communities. They all know this.

The Betsy Lehman Center might provide us with a vision of how to make that ambition real.

Build it, and they will come.

James Doyle is a Boston defense lawyer and author, and a  frequent contributor to The Crime Report. He welcomes  readers’  comments.



















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