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Healthcare Professional Attorney

As Published in The Association for Healthcare Risk Management of New York, Inc. (AHRMNY)
Volume 1-2015
Page 3


By Karen J. Halpern, RN, BS, MSN, JD and
Lauren E. Sicard, RN, MSN, Esq

Abstract: This article discusses the need for professional licensure disciplinary defense attorneys to educate the professional staff at the New York State Education Department Office of Professional Discipline about the philosophies of the Just Culture model and how those philosophies should impact their decisions regarding appropriate disciplinary penalties in cases involving unintentional medical error by the health care professional.


In New York, the New York State Education Department’s Office of the Professions is the agency that investigates and prosecutes all complaints concerning allegations of professional misconduct for all of the licensed professions. Professional misconduct is defined as “the failure of a licensed professional to meet the standards of practice”. 1 Ultimately the New York State Board of Regents is responsible for the final disposition of all disciplinary matters involving the 50 professions that come under its jurisdiction. 2

The disciplinary process is initiated by a complain t to the New York State Office of Professional Discipline [OPD]. The complaint can originate from many sources. Some of those sources may include a patient or family member, employer, co-worker or even through an anonymous source. All complaints to OPD are investigated. Being convicted of a crime, even a crime unrelated to the professional practice itself, will also trigger a professional discipline investigation.

The Professional Discipline Investigation Process

When an initial complaint is received, it is referred to an OPD investigator who gathers the documentation and information needed for the matter to be reviewed by a prosecutor and a member of the applicable board for the professional under investigation. That initial review will result in the licensee being advised that they are under investigation, and, further that they have an opportunity to attend an interview to put forth any information which they believe is helpful to their defense.

The licensee may elect not to participate in the interview with the OPD investigator. These authors believe that the interview is an excellent opportunity to present an explanation of the event under investigation, or present information regarding mitigating factors. Very often an investigation will be closed with a finding of insufficient evidence if the licensee makes a strong showing at the interview.

Representation at OPD

This article will comment upon a recent case involving a nurse under investigation at OPD which involved an unintentional medical error. When the error was identified, the nurse was transparent, honest and assumed full responsibility . The mistake was caused by human error. The nurse was willing to undergo re-education to improve her skill set and prevent future similar error. She had worked at the hospital for a number of years without any incidents or prior discipline. She had received excellent performance evaluations during her tenure at the hospital. Notwithstanding, she was notified by the hospital that she would be terminated from her position due to the error and would be reported to OPD. She opted to resign in lieu of termination. An OPD investigation ensued.

The nurse attended the OPD interview with counsel and was honest about the event. She fully explained the circumstances, including the fact that the incident involved unintentional human error. The nurse had completed several continuing education classes to remediate and re-educate herself in an effort to prevent a similar occurrence in the future.

Following the interview, her attorney was notified that the matter was screened by an OPD prosecutor with a member of the Board of Nursing and a determination was made that there was sufficient evidence to charge the nurse with professional misconduct. The suggested penalty was actual suspension of the RN license for a period of time, with a fine and probation.

During negotiations with the OPD prosecutor, the nurse’s attorney argued that the error was unintentional, t hat the nurse was open and honest and was extremely receptive to remediation and re-education. Furthermore, her attorney argued that the Just Culture philosophy should be implemented and that the nurse should be supported not punished. To the surprise of her attorney, when Just Culture was mentioned, the prosecutor responded, "Just what? I’ve never heard of Just Culture - are you making that up ?”

This was the perfect opportunity to explain the philosophies of the Just Culture model to the prosecutor and explain that support and remediation was the appropriate response rather than strict discipline. Strict discipline al one does nothing to improve and enhance the culture of safety nor does it improve patient outcomes.

Advocating for the use of the Just Culture model will often first require the disciplinary authorities, senior leadership and other health care decision makers to be educated in terms of its principals, benefits and application. The following summary describes the Just Culture philosophy including its history and the evidence based benefits which demonstrate improved patient outcomes.

What is Just Culture?

Traditionally, the culture in health care held practitioners accountable for all errors or mishaps that occurred with patients under their care. By contrast, a Just Culture philosophy recognizes that individual practitioners should not be held accountable for system failings over which they have no control. 3 At the basis of the Just Culture model is the recognition that many individual errors represent predictable interactions between human operators an d the systems in which they work. A Just Culture philosophy does not promote “no blame” as its primary governing principle although this is a common misconception. In fact, a Just Culture model does not tolerate conscious disregard of clear risks to patients or gross misconduct (e.g., falsifying a record, performing professional duties while intoxicated). 4 Additionally, application of a Just Culture model requires an environment where frontline personnel feel comfortable disclosing errors, including their own, while maintaining professional accountability. 5 In this way, the systems and circumstances contributing or causing an error can be addressed thereby preventing the error, and associated patient harm, from occurring again.

When was Just Culture developed?

Like so many patient safety initiatives in health c are today, the development of a culture that treats mistakes justly has its roots in the aviation industry. As early as 1944, the increasing “criminalization” of the people involved with aviation accidents caused the industry to formally acknowledge accidents to be the result of an “undesirable chain of events”. 6 To prevent the repetition of such events, the aviation industry recognized an effective investigation process and safety occurrence reporting system were both necessary, as opposed to a system based on finding blame. 7

A Just Culture model is essentially comprised of two primary components: 1) A proactive/preventative app roach to error through the use of a non-punitive reporting system designed to identify opportunities for improvement, and 2) A reactive approach to errors that seeks to establish whether the individual made the error due to a flawed system, human error, or behaviors described as at-risk, reckless, or intentional.

1)Just Culture – Transparent Event Reporting:

It is often said that those who do not learn from history are doomed to repeat it. This statement reflects the Just Culture objective, which is preventing the recurrence of mistakes and accidents by encouraging active and transparent reporting of occurrences, as well as full participation in an investigation for safety purposes instead of merely punishing those involved. Moreover, in 2000, Dr. Lucian Leape, a member of the Quality of Health Care in America Committee at the Institute of Medicine testified before the U.S Congress that “approaches that focus on punishing individuals instead of changing systems provides strong incentives for people to report only those errors they cannot hide. Thus, a punitive approach shuts off the information that is needed to identify faulty systems and create safer ones. In a punitive system, no one learns from their mistakes”. 8

Dr. James Reason, a noted psychologist in the field organizational culture is often quoted for stating a "Just Culture is an atmosphere of trust in which people are encouraged to provide safety-related information, but in which they are also clear about where the line must be drawn between acceptable and unacceptable behavior”. 9 A Just Culture is one that learns and improves by openly identifying and examining its own weaknesses. Organizations that follow a Just Culture philosophy are as willing to expose areas of weakness, as they are to display areas of excellence. Of critical importance is the fact that caregivers feel that they are supported and safe when voicing concerns.10 Individuals know, and are able to articulate, that they may speak safely on issues regarding their own actions or those in the environment around them.11

As an alternative to a punitive system, application of a Just Culture model, which has been widely used in the aviation industry, seeks to create an environment that encourages individuals to report mistakes so that precursors to errors can be better understood in order to fix the system issues. Transparency i.e. the free, uninhibited sharing of information, has been cited as one of the most important attributes of a culture of safety. In complex, tightly coupled systems like health care, transparency is a precondition to safety. Its absence inhibits learning from mistakes, distorts collegiality and erodes patient trust.

2) Just Culture – Accountability:

As previously stated a facility that embraces a Just Culture philosophy creates an atmosphere of trust in which people are encouraged to provide safety-related information, but in which they are also clear about where the line must be drawn between acceptable and unacceptable behavior. Therefore, accountability is essential to a successful Just Culture ideology. The components of accountability include the individual's understanding that they are to perform an action, a clear expectation what that action is, and the means by which they will be evaluated.12  A Just Culture system involves the organization’s development of a framework for consistent accountability, correction where accountability is poorly defined and individuals are clear what the rules are, or whether the rules are constantly changing.13

Determining when a health care provider warrants disciplinary sanction requires an understanding of the inter-relationship between human behavior, discipline and patient safety. There are various categories of behavior re cognized by the different descriptions of Just Culture. The table below is an overview of the three behaviors and associated management strategies most frequently described in the various descriptions of Just Culture.14

Human Error At-Risk Behavior Reckless Behavior
Inadvertently doing other than what should have been done. When a behavior choice is made that increases risk where risk is not recognized, or is mistakenly believed to be justified. Action taken with a conscious disregard for a substantial and unjustifiable risk.
Manage by consoling the individual, then consider changes in processes, or procedures, training and design. Manage with coaching and/or removing incentives for at-risk behavior and create incentives for healthy behavior. Teach situational awareness. Manage with remedial or punitive action.

Conclusion of the OPD Case

The particular OPD case discussed above involved unintended human error that resulted in the parties appearing before a Board of Nursing representative at an Informal Settlement proceeding. At that time, the ANA Position Statement on Just Culture was presented and discussed.15 The American Nursing Association (ANA) Position Statement specifically states:

“The Just Culture concept establishes an organization-wide mindset that positively impacts the work environment and work outcomes in several ways. The concept promotes a process where mistakes or errors do not result in automatic punishment, but rather a process to uncover the source of the error. Errors that are not deliberate or malicious result in coaching, counseling, and education around the error, ultimately decreasing likelihood of a repeated error. Increased error reporting can lead to revisions in care delivery systems, creating safer environments for patients and individuals to receive services, and giving the nurses and other workers a sense of ownership in the process. The work environment improves as nurses and workers deliver services in safer, better functioning systems, and the culture of the workplace is one that encourages quality and safety over immediate punishment and blame.”[Emphasis added]

The disciplinary authorities in this particular case were receptive to the defense arguments. Ultimately, a non-public discipline was negotiated and approved that did not include suspension or probation. The settlement consisted of a Violation Committee Statement which is not reported publically on the internet.


This brief case study is an example of how the education of decision makers regarding the Just Culture philosophy affected the final outcome and resolution of a nursing disciplinary matter that stemmed from an unintentional medical error. Eventually, once the disciplinary authorities were educated about the Just culture model of patient safety and the recognized theories of accountability, they were more willing to consider a less punitive action against the health care professional.

The single greatest impediment to error prevention in the medical industry is that we punish people for making mistakes. -Lucian Leape



1 (New York's Professional Misconduct Enforcement System, 2014)
2 (New York's Professional Misconduct Enforcement System, 2014)
3 (Agency for Healthcare Research and Quality, 2014)
4 (American Nurses Association, Congress on Nursing Practice and Economics, 2010)
5 (Agency for Healthcare Research and Quality, 2014 )
6 (Trogeler, 2014)
7 (Trogeler, 2014)
8 (American Nurses Association, Congress on Nursing Practice and Economics, 2010)
9 (American Nurses Association, Congress on Nursing Practice and Economics, 2010)
10 (David Marx, 2001)
11 (Allan S. Frankel, 2006)
12 (Allan S. Frankel, 2006)
13 (Allan S. Frankel, 2006)
14 (American Nurses Association, Congress on Nursing Practice and Economics, 2010)
15 (American Nurses Association, Congress on Nursing Practice and Economics, 2010

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