It’s spurred the Ohio legislature to name a law after her, always a bad sign. When 2 year old Emily Jerry slipped into a coma and quietly passed away, it was a tragedy of terrible proportions. An inexcusable combination of incompetence and neglect when a pharmacy prepared tiny Emily’s chemotherapy medicine in a hypertonic saline solution. And Emily died because of it.
Via MedCity News,
Via MedCity News,
As a result of the incident, the Ohio legislature passed what is now known as “Emily’s Law”, which provided quality control guidelines for pharmacy technicians. Prior to the law, people could obtain employment in a pharmacy lab with barely a high school diploma. Reassuring, no?
For those of us who expect that the kindly fellow in the white lab coat who prepared and provides us with medicine either does it himself, or closely watches those who do, so they don’t poison us, this comes as a surprise. Who would have thought we needed a law to require them not to be careless, not to allow drugs to kill rather than cure.
But the pain from the death of Emily Jerry demanded something more than a law requiring the obvious. It demanded that someone pay.
According to the Cleveland Plain Dealer, Eric Cropp pleaded no contest to involuntary manslaughter. He was stripped of his pharmacy license in 2007, a year after this happened. Now he stands convicted.
There’s no point in straining to think of an explanation or excuse for Cropp’s failure to demonstrate the minimal degree of competence and interest that was needed to save Emily Jerry from death by medication. Nor does he deserve such effort. But this wasn’t a crime and he wasn’t a criminal. It was a tragedy and he was incompetent, negligent and should not be allowed anywhere near a pharmacy.
One of the unfortunately recurring themes is the criminalization of conduct based on outcome rather than intent. Had Cropp meant to do harm, the story would be different. Had Cropp voluntarily arrived at work drunk or high, knowingly engaging in conduct that presented a grave risk to patients, the story would be different. But there is nothing here to suggest anything beyond the fact that Cropp screwed up royally by signing off on a medication that was improperly prepared by a tech. I don’t care if he was busy or overworked and understaffed (sound familiar, for those who are apologists for indigent defense screw-ups?). A professional carries a duty, and that duty remains in as full force when busy and overworked as it does when one has all the time in the world.
Still, simple negligence is not a crime. Unless some prosecutor decides that it’s his duty to put someone in prison, in which case anything and everything becomes a crime. And, of course, the prosecutor merely sets the wheels in motion; it’s up to the rest of the system, including the defense lawyers, to make sure that there is no justice.
For those who complain bitterly about the unfairness of medical malpractice, tell that to the parents of Emily Jerry. But it’s still not a crime, no matter how tragic the outcome.
H/T Walter Olson of Overlawyered
But the pain from the death of Emily Jerry demanded something more than a law requiring the obvious. It demanded that someone pay.
The pharmacy technician in this case, Katie Dudash, was granted immunity in return for testifying against her boss, Eric Cropp.
Eric Cropp, the supervising pharmacist on duty that day, had signed off on the preparation.
According to the Cleveland Plain Dealer, Eric Cropp pleaded no contest to involuntary manslaughter. He was stripped of his pharmacy license in 2007, a year after this happened. Now he stands convicted.
There’s no point in straining to think of an explanation or excuse for Cropp’s failure to demonstrate the minimal degree of competence and interest that was needed to save Emily Jerry from death by medication. Nor does he deserve such effort. But this wasn’t a crime and he wasn’t a criminal. It was a tragedy and he was incompetent, negligent and should not be allowed anywhere near a pharmacy.
One of the unfortunately recurring themes is the criminalization of conduct based on outcome rather than intent. Had Cropp meant to do harm, the story would be different. Had Cropp voluntarily arrived at work drunk or high, knowingly engaging in conduct that presented a grave risk to patients, the story would be different. But there is nothing here to suggest anything beyond the fact that Cropp screwed up royally by signing off on a medication that was improperly prepared by a tech. I don’t care if he was busy or overworked and understaffed (sound familiar, for those who are apologists for indigent defense screw-ups?). A professional carries a duty, and that duty remains in as full force when busy and overworked as it does when one has all the time in the world.
Still, simple negligence is not a crime. Unless some prosecutor decides that it’s his duty to put someone in prison, in which case anything and everything becomes a crime. And, of course, the prosecutor merely sets the wheels in motion; it’s up to the rest of the system, including the defense lawyers, to make sure that there is no justice.
For those who complain bitterly about the unfairness of medical malpractice, tell that to the parents of Emily Jerry. But it’s still not a crime, no matter how tragic the outcome.
H/T Walter Olson of Overlawyered
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What’s also interesting is what’s happened since that plea agreement. Pharmacists groups are planning a push to get a kind of “FAA standard” for reporting errors that would shield pharmacists from criminal penalties. Essentially, unless the conduct fit the definition of “wanton or willful disregard” they would receive a certain level of immunity when they reported errors.
We wrote about that soon after the sentencing. But an Ohio legislator has also introduced a law that would criminally punish pharmacists who don’t report certain mistakes.
I suspect this effort to be somewhat misguided. There neither can, nor should, be a special exeption for pharmacists when it comes to criminal liability. It’s not a pharmacist (or physician) problem, but a systemic problem. As for the definition of “wanton or willful disregard,” it’s sufficiently meaningless to continue to cover anything a prosecutor wants it to, provided the judge is amenable. Until the courts put a stop to the prosecution of negligence, for everyone and not merely pharmacists, the problem will persist.
This is a really good issue.
It reminds me of the now common practice to have the “victims”, or their families, give speeches about how much they hate the defendant at sentencing time. It’s emotionally appealing but rationally misguided.
This whole atmosphere has led prosecutors I know to sometimes refer to victims as their “clients”. Whoa.
I think the common denominator here is prosecutorial discretion, and a dangerous deficiency in how a lot of prosecutors think and reason.
It’s too easy to convict people, and the system backs a criminal prosecution way too much. Over time I think this affects the prosecutors, because there is effectively no check on their judgment. Whatever decision they make about who to prosecute is extremely likely to be rewarded with a conviction; we all learn from our mistakes, but the system doesn’t let the prosecutor make any, even when he does.
It takes a refined mind, and refined judgment, to properly distinguish between wrongful conduct which is criminal and wrongful conduct that isn’t. Too often the criminal justice system is a mindless conviction machine in service of the vox populi, the police or some other politically powerful group. There are many injustices that occur because neither prosecutors nor judges (who are mostly former prosecutors) have refined minds or judgment – not because they are incapable, but because their careers have not afforded them any opportunities for refinement.
I have to disagree. In all the courts where I practice, we have a judge. The judge is the check on prosecutorial discretion. If the alleged conduct is not a crime, the judges have a way to deal with it. If they fail or refuse, or defer to the prosecutor, then they too have failed.
But they almost always fail or refuse, or defer to the prosecutor. And in personal injury cases they favor the insurance defense side. And in business disputes they favor the bank or the big company.
It’s the nature of the beast. Judges are establishmentarian by nature, training and experience; that’s how they got to be judges. They are loathe to depart from the establishment’s script and they rarely do.
We implicitly or maybe subconsciously recognize this. It’s why we have juries.
Sometimes, yes, which is still too often, we have judges who wear the robe and rubber stamp the prosecutor. But that is a separate problem. When judges refuse to be judges, it’s not the prosecutors’ fault, and blaming the prosecutor won’t fix the judge problem.
Horrible story. Kind of reminds me of “It’s a Wonderful Life.”
More seriously, but also orthogonally, it does remind me that while medications are a commodity, the people who prepare them aren’t. Human, fallible, sure. Commodities, nah.