Intended for healthcare professionals

Rapid response to:

News Extra [these Stories Appear Only On The Web]

German hospital may face prosecution after publishing a research letter

BMJ 2000; 321 doi: https://doi.org/10.1136/bmj.321.7260.530/e (Published 02 September 2000) Cite this as: BMJ 2000;321:530

Rapid Response:

Iatrogenic Harm - Mixed Messages

Tuffs' news item(1) highlights a significant impediment to the
disclosure of iatrogenic harm (IH); namely, openness about IH may have
serious legal implications for those who disclose the harm. Her article
also illustrates the complex questions surrounding IH, such as: 'Who/What
caused the harm?'; and 'Who is morally and legally responsible and
blameworthy for it?'.

A decision to reduce the recommended concentration of a disinfectant
should not be made without considering the bases for determining
recommended strengths (including the adverse effects of these), and the
effects of dilution. However, even though the outcome of dilution in the
German case appears to have been disastrous, criminal prosecution seems
counterproductive.

One of the things that those affected by IH want to ensure is that
the same thing will not happen again(2). The disclosure of IH in the
German Hospital case helps to achieve this goal. Criminal prosecution on
the other hand, is likely to deter other health practitioners (HPs) from
disclosure; and this is not in the interests of patients and their
significant others, nor is it in the interests of HPs who can be saved
from the devastating effects of contributing to IH(3, 4). Criminal
prosecution serves to support HPs' fears about the adverse effects of
disclosing IH, and undermines the effectiveness of strategies to overcome
the silence of HPs about IH(5).

This is not to say that there should be no legal recompense to the
families affected by the harm, since despite their good intentions, HPs
seem to have failed to prevent infection and this is reported to have
"caused two deaths among the 28 infected babies" (1). Rather than facing
criminal or indeed, civil liability, a better outcome overall may be
achieved by a no-fault compensation system. HPs providing effective peer
review, and the state maintaining rigorous regulatory procedures can
overcome weaknesses of a no-fault compensation system, such as lack of
accountability of HPs. However, as the publicised cases of IH often show,
we still have a long way to go in achieving both effective peer review,
and rigorous regulation(6).

1. Tuffs, A. German hospital may face prosecution after publishing a
research letter. BMJ 2000; 321: 530 (2 September).

2. Vincent C, Young M, Phillips A. . Why do people sue doctors? A study of
patients and relatives taking legal action. The Lancet 1994; 343: 1609-13
(25 June).

4. Christensen JF, Levinson, W, Dunn, PM. The heart of darkness: the
impact of perceived mistakes on physicians. Journal of General Internal
Medicine 1992; 7: 424-31 (July/August).
4. Wu, A.W. (2000). Medical error: the second victim. BMJ 2000; 320: 726-7
(18 March).

5. See for example: Leape L. Error in medicine. JAMA 1994; 272(23):1851-7
(21 December). Reinertsen JL. Let's talk about error (editorial). BMJ
2000; 320:730 (18 March).

6. The Bristol Royal Infirmary example is a case in point. Others include
the so-called 'Unfortunate experiment' in New Zealand, and the more recent
gynaecology case reported in Roach, JO. Management blamed over
consultant's malpractice. BMJ 2000; 320: 1557 (10 June).

Competing interests: No competing interests

03 September 2000
Beth Bennett
Lecturer
School of Nursing, Victoria University (Melbourne, Australia)