Medical Negligence Doctrine and the Road to Systems Thinking in Response to Medical Error: Facilitating or Frustrating?

• Date: 01 January 2023

1

Medical Negligence Doctrine and the Road to

Systems inking in Response to Medical Error:

Facilitating or Frustrating?

JULIANA GLEESON*

Introduction

Adverse events in healthcare delivery can have widespread and devastating impact.

is impact extends beyond the parties directly implicated in the error, to the wider

community, aecting healthcare budgets and attitudes towards healthcare industry

in Ireland more generally. While the occurrence of errors cannot be entirely avoided,

their regularity and the extent of this impact can be minimised. In Ireland, patient

safety errors cost a total of 10% of the entire healthcare budget, which amounted to

€2 billion in 2022. 70% of errors in the same year were considered preventable.1 Key

to rectifying these patient safety and budgetary concerns is a proper understanding

of the causes and eects of medical error, and the implementation of appropriate

and considered responses.

In recent years, a shi in focus from the individuals tasked with delivering care

to the broader system and environment within which they work has challenged

traditional understandings of medical error and their attendant ‘name, blame and

shame’ responses. A so-called approach of ‘systems thinking’, prevalent and eective

in various other safety critical industries including aviation and engineering,

analyses adverse events in the context of the wider environment or ‘system’ in which

they occur. In being alive to stages and interconnected lines of safety delivery, it

replaces a narrow analysis of the shortcomings of one element of that system alone.

is paper argues that principles of medical negligence litigation in Ireland

frustrate rather than facilitatea healthcare industry-wide shi to systems thinking

in responding to errors in healthcare delivery. While cognisant that not all medical

errors result in litigation, the focus of this paper is those errors that do. Indeed, it is

this narrow focus which is identied as an oversight in the systems thinking analysis

* BCL (International) (University College Cork), LLM (Medical Law and Ethics) (University of

Edinburgh); trainee solicitor at McCann FitzGerald LLP. e author would like to thank the

editorial board and anonymous peer reviewers for their contributions to this piece. Further thanks

are due to Mr Gerard Porter for his guidance on an earlier dra of this article. All views expressed in

this article are the author’s alone.

1 Eilish O’Regan, ‘100 patients a week could be dying in Irish hospitals due to lack of safety controls,

doctor turned pilot claims’, e Irish Independent (Dublin, 1 October 2022) .

independent.ie/irish-news/100-patients-a-week-could-be-dying-in-irish-hospitals-due-to-lack-of-

safety-controls-doctor-turned-pilot-claims/42031895.html> accessed 18 June 2023.

2  

and adoption to date. Specically, this paper argues that the traditional doctrines of

breach of duty and causation, as employed in medical negligence litigation have

wide but underappreciated potential to facilitate systems thinking. Where a multi-

level approach to change is adopted, it becomes clear that until the narrative of

these doctrines is better aligned with the ideals of systems thinking, responses to

medical error as a whole will remain outdated and problematic. is will resultin

sub-optimal quality of care.

is article begins by setting the scene on systems thinking. e dening features

of this new paradigm within which to understand error are set out, juxtaposed

with now outdated, traditional approaches. e necessity for its adoption in the

healthcare context specically is also established, to mirror changes in both the

delivery of healthcare and in medical error causality.

Drawing on this background, the scope for medical negligence doctrine to embody

and encourage a systems thinking approach to error is detailed. A tri-partite

contribution is envisaged, comprising educative, symbolic and cultural functions.

e article then undertakes a primarily theoretical appraisal of those legal doctrines

used to establish professional negligence and hospital liability respectively in

Ireland. In terms of professional negligence, the traditional principles set out in

Dunne v National Maternity Hospital2 (the “Dunne Principles”) are challenged

for their unjustiable preoccupation with the knowledge, skill and standing of one

part of a wider system in which error occurs. In turn, the discussion on hospital

liability highlights an identied indierence towards various conceptualisations of

such liability within medical negligence litigation. is, it is contended, ies in the

face of the systems thinking narrative. Together, the application of these doctrines

in practice frustrates any legitimate and long-lasting transition to systems thinking

in the healthcare industry.

e discussion is closed with suggestions on reforms aimed at facilitating a more

fruitful relationship between medical negligence doctrine and systems thinking

going forward.

I. Understanding Medical Error: the Person Approach v

theSystem Approach

Healthcare is a safety critical industry3 in which adverse events are bound to occur.

Responses to error adopt either the ‘person approach’ or ‘systems approach’.4 e

person approach, traditionally dominant in healthcare, locates error in human

fallibility and the isolated failures of individuals. Associated countermeasures seek

to ‘name, blame and shame’ the individual.

2 [1989] IR 91.

3 Department of Health (UK), Making Amends: a consultation paper setting out proposals for reforming

the approach to clinical negligence in the NHS (2003).

4 James Reason, ‘Human Error: Models and Management’ (2000) 320 British Medical Journal 768.

Medical Negligence Doctrine and the Road to Systems inking 3

A ‘systems approach’ or ‘systems thinking’ asserts that errors are most oen located

in the wider environment or ‘system’ in which individuals work5 and the associated

dynamic interaction and integration of people, processes and technology.6 It rests

on the basic premise that human errors are most oen consequences rather than

causes, having their origins not so much in the perversity of human nature as in

‘upstream’ systemic factors and failures.7 is article characterises the hallmarks of

systems thinking as both an emphasis on systems failures and its attendant lessons,

and a corresponding de-emphasis on individualised blame practices. Associated

countermeasures are therefore multi-level, tackling all contributory elements of the

wider system, using error as a basis for learning and performance improvement.

It is important to note that systems thinking does not neglect to hold individuals

accountable for their failures where this is necessary. Indeed, inattention to

personal failures is equally as problematic as inattention to systems failures.

Wachter constructively exemplies this with reference to poor hand-hygiene levels

in US hospitals, despite repeated systems level eorts at improvement.8 Systems

thinking does not deny the possibility that certain errors may in fact be attributable

to the failings of an individual exclusively. In turn, systems thinking does not

promote a no-blame-culture, but rather a ‘just culture’ which dierentiates between

blameworthy and blameless acts.9 Systems thinking does not reduce accountability,

but rather accurately redirects it, ensuring it is necessary and proportionate to one’s

contribution to error.

A. e Need for Systems inking in Response to Medical Error

e adoption of systems thinking has substantially improved the quality of services

in many other high-risk industries, such as aviation and transport.10 e impetus

5 A ‘system’ in this context means a set of interdependent elements, both human and non-human,

interacting to achieve a common aim; see Michelle Mello and David Studdert, ‘Deconstructing

Negligence: e Role of Individual and System Factors in Causing Medical Injuries’ (2008) 96

Geo LJ 599, 600.

6 Patricia Trbovich, ‘Five Ways to Incorporate Systems inking into Healthcare Organisations’

(2014) 48(2) Biomdeical Instrumentation and Technology 31.

7 Reason (n 4) 678.

8 Robert Wachter and Peter Pronovost, ‘Balancing “No Blame” with Accountability in Patient

Safety’ (2009) 361(14) New England Journal of Medicine 1401.

9 In aviation for example, 90% of adverse events are judged as blameless, with the remaining 10%

holding an individual to account: Reason (n 4) 769; David Marx, ‘Patient Safety and the “Just

Culture”: A Primer for Health Care Executives’ (Medical Event Reporting System for Transfusion

Medicine, 17 April 2001) wordpress.com/2010/02/mers.pdf> accessed

3 August 2023; in the Irish context, see HSE, e Development of a Just Culture in the HSE (23

March 2022) t/who/nqpsd/qps-incident-management/just-culture-

overview.pdf> accessed 8 August 2023.

10 omas Tamuz, ‘Classifying and Interpreting reats to Patient Safety in Hospitals: Insights from

Aviation’ (2006) 27 Journal of Organizational Behaviour 919.