7 www.loubar.org November 2024 Serving your practice as our own For more information call us at 502-568-6100 or Submit for a quick quote at www.LMICK.com challenges, with average patient acuity rising while nurses are being asked to care for more patients. A shortage of support personnel (particularly respiratory therapists, nurse aides, phlebotomists, and emergency medi- cal technicians, but also other occupations) places additional pressures on nurses who find themselves performing the additional tasks often delegated to others.” Global Data concluded that Kentucky’s “current [nurs- ing] shortfall is projected to persist” through 2035. Id. Both the spike in nuclear verdicts in civil litigation following the COVID-19 pandemic and Kentucky’s recent appearance on the American Tort Reform Association’s “Judicial Hellhole Watch List” certainly hinder efforts to attract health care providers to the Com- monwealth even further. With the threat of both civil and criminal liability looming, why would health care providers want to work in Kentucky? The General Assembly needed to take action to attract health care providers and protect the Commonwealth’s citizens. Medical Errors and Creating a Culture of Patient Safety A Johns Hopkins’ study in 2016 found that medical errors cause approximately 250,000 deaths yearly and are the third leading cause of death in the United States. Common medical errors noted by the World Health Organization (WHO) include medication er- rors, surgical errors, health care-associated infections, sepsis, diagnostic errors, falls, pressure ulcers, venous thromboembolism, unsafe transfusion and injection practices, and patient misidentification errors such as wrong-site surgery. According to the WHO, “[h]alf of the avoidable harm in health care is related to medications.” Id. Medication errors like those made by RaDonda Vaught are the most common errors in the health care setting. The WHO defines patient safety as “the absence of preventable harm to a patient and reduction of risk of unnecessary harm associated with health care to an acceptable minimum.” Id. Patient safety “creates cultures, processes, procedures, behaviours, technolo- gies and environments in health care that con- sistently and sustainably lower risks, reduce the occurrence of avoidable harm, make error less likely and reduce impact of harm when it does occur.” Id. The WHO recognizes that “there are multiple and interrelated fac- tors that can lead to patient harm” and “[m]ost of the mistakes that lead to harm do not occur as a result of the practices of one or a group of health and care workers but are rather due to system or process failures that lead these health and care workers to make mistakes.” Id. That is exactly what Ms. Vaught’s defense argued at her trial—her mistake was the result of systemic errors at the hospital. Accord- ing to the WHO, it is critical to shift from a blame approach to a system-based thinking approach to “[u]understand the underlying causes of errors in medical care.” Id. This ap- proach attributes errors to “poorly designed system structures and processes” while taking human nature and fallibility into account as well as the quick-changing environments of health care. Id. Last year, CMS announced in its “First, Do No Harm” blog post for National Patient Safety Week that patient safety “[b]est prac- tices include ensuring a culture of safety, improving teamwork and communications, and carefully analyzing errors to identify root causes. These best practices can be stan- dardized across health care to build a more resilient and durable system of safety that extends from the C-suite and the Boardroom to every health care worker for the benefit of patients everywhere.” The WHO notes that “[a] safe health system is one that adopts all necessary measures to avoid and reduce harm through organized activities.” These organized activities include: “ensuring a leadership com- mitment to safety and creation of a culture whereby safety is prioritized; ensuring a safe working environment and the safety of procedures and clinical processes; building competencies of health and care workers and improving teamwork and communica- tion; engaging patients and families in policy development, research and shared decision- making; and establishing systems for patient safety incident reporting for learning and continuous improvement.” Id. To create a culture of patient safety, health care providers must be able to disclose er- rors free from blame or criminal charges. Blame and criminal charges create a culture of fear and punishment and do not promote patient safety. Such an approach discourages the principles behind patient safety initia- tives, i.e., self-reporting, open communica- tion, and actions to prevent future errors, and has the propensity to increase medical errors thereby decreasing patient safety. An unfortunate result of the fear approach is that it discourages not only self-reporting of medical errors but also discourages individuals from wanting to practice in the health care setting at all. A health care culture focused on fear and punishment will inevitably create a shortfall in staffing of all health care providers. No health care providers intend to hurt patients. Physicians take the Hippocratic Oath, and nurses take the Nightingale Pledge. Health care is, for the most part, delivered by humans who are fallible. Why would anyone want to provide health care services if they knew they could go to prison for an honest, inadvertent mistake? For these reasons, the Kentucky General Assembly was forward-thinking in its approach with HB 159. It recognized not only that the Commonwealth needs to be able to attract and retain health care providers, especially when facing a shortfall of qualified health care workers, but also that it needs to reinforce the importance of creating a culture of patient safety in health care settings to protect the citizens of the Commonwealth. Leigh Schell is an Associate in Stoll Keenon Ogden’s Louisville office. Her primary focus is on the defense of profes- sional negligence claims made against physicians, healthcare personnel, hospitals and nursing homes. 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