Current Priorities  Decriminalization for Unintentional Errors Part of Quality Improvement Act Legislation

January 11, 2011

The Wisconsin Legislature is now in Special Session. The first legislative proposals are Special Session Senate Bill 1 and the companion bill Special Session Assembly Bill 1 which are referred to as the Quality Improvement Act (QIA). The bills include language that address decriminalization for unintentional medical errors. Section 44 of this 31 page legislative proposal contains the same decriminalization language that WNA supported last biennium in Senate Bill 657. SB 657 was approved by the Senate but the legislative session ended before it could be taken up in the Assembly.

The decriminalization language for unintentional medical errors is important to nurses for the following reasons:

• Unintentional medical errors are most times the result of a facility or health care organization system breakdowns or gaps in performance, and not the individual health care professional.
• Our health care delivery system is complex and challenging. When errors occur, most health care organizations review the system root causes and avoid placing blame on the individual involved.
• Federal and State laws currently address medical errors in a variety of ways, including Department of Regulation and Licensing Board of Nursing review and discipline, Department of Health Services sanctions and penalties, and/or the Civil Court system and/or Injured Patient Compensation Fund.
• Given these regulatory state agencies, it is inappropriate for the Department of Justice (DOJ) to have the authority to charge an individual health care professional involved in an unintentional medical error as a felon. This is why SSB1 & SAB1 are important -- it applies an exception for unintentional medical errors under State Statutes 940.295.
• We need to fix the system now so that a culture of patient safety and quality improvement can move to a higher level. Blame is no longer the status quo in health care organizations who understand that system delivery can continually be improved when processes are examined and improvements made based on findings. When blame is used, such as the actions of the DOJ, health professionals stop reporting and cease to get fully involved in improving quality of care and patient safety.
• The impact of allowing the DOJ to continue to use State Statute 940.295 as the means for criminalization of health care professionals for unintentional errors continues to cause concern and distress among nurses. In addition, 940.295 creates a strong incentive to not report errors or "near misses". This is not good for our health care delivery system or our patients.

The QIA also supports the following professional and organizational responsibilities and accountabilities:

Encourage transparency and public reporting. Actual data that providers publicly report would of course not be confidential under the QIA. Health care providers would be encouraged to report the data that becomes public because the underlying information used to produce a public report would be confidential and its use protected.

Encourage collaboration. The QIA will encourage health care providers, networks, and systems to share quality improvement information and analyses. Through this collaboration, providers can work to determine best practices, improving the quality and efficiency of health care services.
Encourage cooperation with regulators. Wisconsin's health care regulatory system is dependent on providers openly talking to regulatory investigators. In order to preserve the oversight capabilities of the regulatory agencies, the QIA would ensure that the agencies' interviews and reports could not be used in criminal and civil proceedings.

Encourage consistency. The QIA would make the definition of patient abuse and neglect in the criminal statute consistent with the Department of Health Services' definition used for regulatory oversight, meaning that acts by a health care provider that are not "abuse" or "neglect" for purposes of regulatory oversight also would not be "abuse" or "neglect" for purposes of a criminal charge.

A joint public hearing was held on Tuesday January 11, 2011 by the Senate Committee on Judiciary, Utilities, Commerce and Government Operations Committee and the Assembly Committee on Judiciary & Ethics. WNA submitted testimony and signed on to a coalition letter.