Should Medical Errors Be Punished or Forgiven?

David Marx, JD


April 01, 2019

In This Article

The Quality of One's Choices

In my company's just culture model, we focus more on the quality of one's choices, less on the triumph or tragedy that those choices produce. Unlike Tennessee law (and that of many other states), we do not advocate for harsher penalties when the injury is greater, because doing so simply rewards the lucky and punishes the unlucky. Additionally, justice systems that hinge penalties on harm cause us, the people, to believe that our risky choices are somehow validated by the absence of harm.

We identify five levels of intention toward harm. These are, in descending order of culpability: (1) purpose, (2) knowledge, (3) recklessness, (4) at-risk, and (5) human error.

Purpose is the express goal of causing harm, while knowledge is knowing that harm is going to occur (think of posting compromising photos of your hated coworker as a purpose to cause harm, whereas theft of your nifty work computer is knowingly causing harm).

While purpose and knowledge are very similar, we split the two because knowingly causing harm is sometimes justified (breaking into a car to save an overheating baby), whereas a purpose to cause harm is never justified. These two levels of intent, purpose and knowledge, are there in the Tennessee criminal law; there's just no reason to believe that they are relevant to the case at hand.

Recklessness, again, is the conscious disregard of a substantial and unjustifiable risk (think drunk driving). In other just culture models, many crafted by non-lawyers, you will see the words "reckless" and "negligence" used interchangeably for intentional risk-taking. In fact, they are two very different terms in the law, with negligence more tied to simple human error than willful risk-taking behavior.

We abandon the term "negligence" because notions of negligence on the street are far more culpable than how the law defines it. In our model, we split negligence into two types of behavior: human error and at-risk behavior.

At-risk behavior is the choice, but where the risk is not seen or mistakenly believed to be justified (think of choosing to drive 9 mph over the speed limit). Human error is the unintended behavior, the slip, lapse, or mistake (think of the stop sign you did not see). In short, we propose the following actions: accept/console the human error, coach the at-risk behavior, and leave sanction/punishment for the reckless, knowledge, and purpose to cause harm.


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