In Response to Criminal Negligence: 7 Strategies for Creating Psychological Safety

Human fallibility is as much an immutable characteristic as the color of our skin.  While we have made progress in civil rights where skin color cannot be the reason for firing an employee, we have nonetheless been putting the squeeze on our human fallibility.  It’s happened over the past 200 years, commensurate with the industrial revolution and the creation of increasingly dangerous instruments of harm, such as automobiles that kill 40,000+ Americans each year.  In our efforts to meet ever more heightened expectations for public safety, we’ve pushed the boundaries of criminal behavior from the conscious will of recklessness, to the benign slip, lapse, or mistake of human error.

As a result, roughly 1,000 of our fellow citizens are being convicted of negligent homicide each year in the U.S., most often the result of an automobile accident or accidental firearm discharge.  Given 200,000 unintentional fatal injuries each year, the risk of criminal conviction awaits one in 100 of us who inadvertently kill another person (estimating half of these unintentional injuries are self-inflicted).  This, of course, excludes the estimated 440,000 lives lost due to medical error (a statistic generally hidden in death certificates under the category of injury or disease).  Unless we happen to know one of these people, we generally live believing we can avoid prison by simply acting without evil intention toward others.  Unfortunately, this myth is shattered when one of our peers is criminally convicted for what was really an unintended outcome (i.e., Kim Potter and RaDonda Vaught).

So, given that we are unlikely to achieve criminal justice reform in a society currently fixated on perfection, we offer seven strategies to help organizational leaders create and maintain psychologically safe internal reporting cultures.

Over the span of 20 years, from 1960 to 1980, the rate of commercial aircraft accidents in the U.S. dropped by 98%.  More than 50 years ago, the Federal Aviation Administration created a rule that if you, as a technician, could use the wrong parts or material, and their installation on the aircraft could endanger flight safety, you were prohibited from doing the task alone, without a second set of eyes.  It is an example of good system design, putting flying passengers further than one mistake, or one bad mental model, away from harm.  With the push to prosecute human errors leading to harm, the obvious best strategy for your employees, and your customers, is to not cause the harm in the first place.  Fewer events mean fewer times employees must face the circus of societal condemnation following actual events, resulting in employees feeling more psychologically safe to report their near misses.

In neither the RaDonda Vaught nor Kim Potter cases, did the employers release a root cause analysis to the public sufficient to express not only what happened, but to the expert judgment of internal evaluators, why it happened.  By conducting a meaningful investigation, we can develop understanding and empathy for another person’s experience and in doing so, we can focus on the real work of safety improvement, rather than on our generally punitive, self-righteous response of “I’d never do that.  I’m a good employee.”

Take organizational ownership for your successes and failures alike.  Civil law already embraces this idea under the legal doctrine of respondeat superior (Latin for “the master must answer”). The City of Brooklyn Center and Vanderbilt University Medical Center should make amends for the harm caused.  Ideally, this would include transparency, a formal apology, compensation, and a commitment to implement preventative measures to avoid future harm.  While seemingly self-protective, turning on your employee who makes a mistake is not the path to high reliability.

In a Just Culture, we judge the quality of a person’s choices, not the triumph or tragedy those choices produce.  We believe that 99% of workplace justice happens ahead of harm, and when harm does occur, we commit to doing exactly what we would do had there been no harm.  The more we convince ourselves and our community that attention should focus on the quality of our collective choices ahead of harm, the less likely we’ll see the actual harm as a call for criminal action against those involved.

Prior to our invention of criminal negligence, criminal liability generally hinged upon our collective ability to choose between good and evil (recklessness being the floor for the latter).  Words like non-punitive and blame-free, often used by safety advocates today, can unfortunately be perceived as a desire to create a world free of personal accountability.  Will Smith’s “love will make you do crazy things” explanation for battery, and an applauding audience of Hollywood actors, should make us all uncomfortable.  Not all undesired conduct is caused by the external forces of bad system design or poor organizational culture.  Psychological safety and personal accountability can coexist.

If the goal of professional boards, and state and federal regulators is to keep the public safe, they too should adopt the tenets of Just Culture.  Through the Patient Safety and Quality Improvement Act of 2005, we enacted federal laws to protect those who report errors in healthcare.  Many professional boards have brought Just Culture concepts into their licensing evaluation process.  Through the Aviation Safety Action Program, we have shown that regulatory, business, and labor partnerships are not only possible, but productive.  We have even seen hospitals bring the local press into their Just Culture work, striving to create reasonable societal expectations ahead of harm.  Educating external stakeholder groups can serve as a buffer to the eventual circumstances that might lead to calls for the prosecution of human error or at-risk behavior.*

Through our elected officials, we wrote the rules criminalizing human error and at-risk behavior.  For those who unintentionally kill, we’ve tasked prosecutors with filing charges to bring them to justice.  If you read the transcripts of the Potter and Vaught cases, you will see prosecutors working hard to convince jurors of the evil in Kim Potter and RaDonda Vaught.  As noble as they might sound, their prosecutorial rhetoric is founded on an unscientific, inaccurate, and damaging model of human behavior.  Until we can admit to who we really are as fallible human beings, we will continue to prosecute human error, further reaping what we have sown:  tragedy followed by injustice, destined to repeat.