Holding Employees Personally Liable for a Healthier World

Holding Employees Personally Liable for a Healthier World

Holding Employees Personally Liable for a Healthier World

We live in a culture that does not celebrate personal responsibility. Far too often individuals are not required to bear the brunt of the consequences for their actions.

   

On November 29 a 9-1-1 dispatcher received a call about "a guy in [a park] with a pistol, pointing it at everybody." The caller also noted that this was "probably a juvenile" and twice noted that the gun was "probably fake."

If you've followed the news lately, you know what happened next: a police unit rolled right up to 12-year-old Tamir Rice and shot him dead within two seconds.

The killing has become enfolded into a raging debate about police use of force—obviously a crucial question when considering on-the-job incompetence and malfeasance. But what is receiving virtually no discussion is the deadly incompetence of the dispatcher. Whatever may be true about the police response to the call, it's easy to imagine that Rice might still be alive had the dispatcher alerted officers what the caller had the good sense to note: that Rice appeared to be a juvenile and his gun most likely a toy.

In the performance of most jobs, mistakes are not life or death. But even when the stakes are that high, to err is human. Despite our best intentions, honest mistakes are made, and sometimes people die as a result.

But some errors stem from a simple lack of care. And when there's that sort of gross incompetence where not doing your job right means someone may die, we would do better as a society to make the penalty for doing so severe enough that there is a vanishingly small likelihood that anyone so unfit for the job would take it in the first place.

The most renowned sort of on-the-job negligence with dangerous implications for others is medical malpractice. Every single reputable doctor and hospital carries insurance against medical malpractice, not because most will be guilty of such, but because the odds are that nearly every practicing doctor—particularly in a high-risk specialty—will face at least one malpractice claim during their career, although fewer than 2% of all claims result in an indemnity payment.

The problem with such a set-up is that it indemnifies medical professionals to such a degree that virtually no level neglect or incompetence can result in personal loss beyond losing one's job. And if a medical professional works at a hospital or for another sort of company, there is an additional level of indemnification, one more barrier to personal responsibility.

In a 1997 piece covering the criminal conviction of a doctor for negligence, The New York Times noted how rare such cases are. "In a case experts have described as extremely unusual, Dr. Gerald Einaugler faces a year of weekends at Rikers Island for his conviction on charges of criminal negligence and violation of state health laws," the Times wrote. "Doctors' groups have strongly backed Dr. Einaugler through his long appeals, arguing that he was wrongly prosecuted for exercising his medical judgment and that a criminal conviction in such a case was unprecedented."

Ironically, Einaugler's conviction may have stemmed from an honest mistake—to which he admitted—rather than the sort of gross negligence that frequently goes unpunished by the legal system.

A clear example of a deadly mistake that could be completely avoided by basic care is what the medical community calls "retained sponges": sponges (or related foreign objects) inadvertently left inside patients during surgery.

The means to avoiding such mistakes is just as simple as you would think: keep a count of the sponges going in, and make damn sure you get the same count coming out. Although statistically rare, there may be more than 100 such events per year, sometimes taking place even when a member of the surgical team is aware that a sponge has been retained. In a review of the problem for Infection Control & Clinical Quality, Todd Stone cities a Mayo Clinic article noting that in over 15% of the incidents it researched the operation "proceeded to completion […] despite at least one team member being aware of an incorrect sponge count. […] Despite national practice standards related to sponge counting, studies show these protocols are routinely ignored, and in any case are insufficient,"

In Stone's article, Ronald Wyatt, MD, medical director of The Joint Commission, speaks to the prevalence of deception in regards to such instances, reporting his own eyewitness account as a young medical student seeing a surgeon remove a mass from a patient's wrist: "When we removed mass and found a sheared off catheter in the middle of it, the doctor said, 'Let's just tell him it was a ganglion cyst.' This kind of deception has gone on forever and still goes on today."

We live in a culture that does not celebrate personal responsibility. Far too often individuals are not required to bear the brunt of the consequences for their actions. Workers do not perform their duties under the specter of true personal accountability.

Yes, an employee can be fired for sloughing off at work. But that isn't enough of disincentive when deadly consequences may result. Consider the situation at General Motors that came to light earlier this year. Typical of how corporate America operates in such scenarios, GM employees ignored and even actively suppressed data about faulty ignition switch that was responsible for over a dozen deaths and more than 50 crashes. It was a level of misconduct and/or incompetence that finally led GM to fire 15 employees. But none has faced criminal charges so far. Should that change, it will be a shot heard 'round the corporate world.

We can only hope that eventually some people will go to jail for their role in the greatest due-diligence debacle in recent times: the subprime mortgage crisis that cost investors billions of dollars.

“When it comes to financial fraud, the [Department of Justice] recognizes the inherent value of bringing enforcement actions against individuals, as opposed to simply the companies that employ them,” says Attorney General Eric Holder. “Despite the growing jurisprudence that seeks to equate corporations with people, corporate misconduct must necessarily be committed by flesh-and-blood human beings.”

It's the right sentiment, except that Holder is wrong to delimit it to the financial sector of life. A disincentivizing cost to gross incompetence and malfeasance shouldn't come only regarding offenses that can be equated with a dollar amount.

I don't know how to put a price on the negligence of the 9-1-1 dispatcher who didn't bother to pass along the not-insignificant detail that the police officers she was dispatching to the Cleveland park were most likely going to be confronting a child with a toy gun (though she did manage to relate that he was "wearing a camouflage hat [and] a gray jacket with black sleeves"). But it's unlikely the dispatcher will pay it. Cleveland officials tell Health Worldnet that there is currently no sort of investigation into the conduct of the dispatcher. If there were, you can bet 9-1-1 dispatchers around the country would be doubly sure not to omit crucial information from their dispatches.

Perhaps most need no such motivation. We would all like to believe that people dispatching police to scenarios in which someone might be shot dead take their job seriously and industriously do their part to protect and serve.

For such competent and diligent employees, the penalties I'd like to see would make no difference whatsoever. For them it would be business as usual. The desire to help others not only drives many people into careers where their actions can be the difference between life and death, but impels them to perform such crucial jobs with enough diligence so that no-one will harmed by their negligence.

But you can't count on altruism. A far more reliable predictor of how people will behave is to determine what they see as being in their self-interest. And were it the case that 9-1-1 dispatchers, for example, could suffer personal ruin for neglecting to effect their sworn duties at the most fundamental level, one 12-year-old Cleveland boy might have been alive this past Christmas.


About the Author:

Except for a four-month sojourn in Comoros (a small island nation near the northwest of Madagascar), Greggory Moore has lived his entire life in Southern California.  Currently he resides in Long Beach, CA, where he engages in a variety of activities, including playing in the band MOVE, performing as a member of RIOTstage, and, of course, writing. 

His work has appeared in the Los Angeles Times, OC Weekly, Daily Kos, the Long Beach Post, Random Lengths News, The District Weekly, GreaterLongBeach.com, and a variety of academic and literary journals.  HIs first novel, The Use of Regret, was published in 2011, and he is currently at work on his follow-up.  For more information:  greggorymoore.com

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Last Updated : Wednesday, September 14, 2022