Prologue A Nurse’s Error Became a Crime

Let me call her Mara.

It was on a Friday in March that I first met her. I had no idea what she would look like—an intensive care unit (ICU) nurse in her late forties, out of uniform. This could be anybody.

As I bounded up the stairs, away from the train platform, and swept around the corner of the overpass, there she was. It had to be her. Late forties, an intensive care nurse of 25 years, a wife, a mother of three.

But now a criminal convict. An outcast. A black sheep. On sick leave, perversely with her license to practice still in her pocket.

We exchanged a glance, then embraced.

What else was I to do, to say? The telephone conversation from the night before fresh in my mind, here she was for real. Convicted twice of manslaughter in the medication death of a three-month-old girl. Walking free now as her case was pending before the Supreme Court.

I stepped back and offered: "This sucks, doesn't it?"

She nodded, eyes glistening.

It was her all right. There hadn't been many other people around in any case.

"I recognized you from a video of a lecture you held," she explained as we turned to go down the stairs to go meet her lawyer.

"And how kind of you to travel up all this way."

"Well, it's the least I could do," I said.

Snow was everywhere. Unyielding, huge piles, blanketing the little town. The lawyer's address was distinguished. The most prominent address in the town, in fact. An imposing building in stately surroundings, spacious offices, high ceilings, the quiet reverence and smell of an old library, archaic dress, archaic language.

The lawyer prattled on, clearly proud that he had, once again, scored the Big One: A hearing in the Supreme Court. I don't know whether proud lawyers make good lawyers. What I wanted to know was the planned substance of the defense, since assisting with that was my only card. A lot of the banter was inconsequential to me, much of it incomprehensible to Mara—a foreign language.

As I looked over to where Mara sat, I could not help but finding her so out of place. A fish on the shore, gasping, trying to make sense of its surroundings as the burden of a final crawl for survival started sinking in. How on earth could a normal, diligent nurse who had practiced her entire adult life, ever have expected to become the lead character in somebody's lofty law offices for a prelude to an appearance at the nation's highest court? Surreal. It must have felt surreal to her. She certainly looked it.

As it turned out (how naïve I am), there is no substance to speak of in a defense before the Supreme Court, because it's all form. Mara began to discover this too, haltingly, stumblingly, and increasingly disgusted.

"All I want is the truth to come out," she repeated.

"It won't," the lawyer found himself explaining over and over. "This is not about truth. It's about procedure and legal interpretation, and whether it has been correctly followed and applied. All we want is to get you off the hook. What we have to show is that the course of justice so far has been improper—the truth is secondary."

"But what about all the other people involved?" Mara appeared to become anguished. "The pediatrician, the prescription that magically disappeared days after the death, the nurse who administered the medication, the doctors who didn't really diagnose, the lousy routines at the hospital, what about them? The truth is that they are all part of this too!"

The lawyer turned to ice. "They are not on trial now, are they? This is about you. You are the only one. As soon as we bring them up in the Supreme Court, they will ask me 'So where are those co-defendants then, counselor? We thought this case was about the nurse, not all these others.' So don't bring it up, I plead with you, don't bring it up."

Mara seemed exasperated. If justice was like this, disinterested in truth, directed through dogmatic decisions by outsiders that limited what was relevant from the events that got her here, with people putatively helping her by telling her not to argue for her case, then why bother at all? Was it worth it? Justice was supposed to be about getting out the real story, what really happened. That would be just, justice would be about righting what was wrong, and about avoiding that it would happen again. That would be just too. Yes, she made a mistake, yes, a baby died. She knew that. But she also knew that the entire system in which she worked was rotten, porous, and ready to kill again.

But it was plain to me that Mara knew why she was here. It wasn't just because of her, because of her role, because of her fate, or because everybody was suddenly gathering around invigorated efforts to make healthcare safer.

She knew who was paying her lawyer, and it wasn't she. Fewer than 1 percent of cases presented actually get heard by the Supreme Court in my adopted country, and hers was among them. It must have mattered, somehow. The country had taken interest. The union certainly had too. Should medical practitioners involved in a patient's death be subject to the criminal justice system? Or should they be dealt with through the established professional channels: The medical disciplinary board? A lot was at stake, that much was obvious to Mara. Realizing that she may have used the stronger solution of the medicine, she had volunteered her possible contribution to the baby's death to her boss a few days after it had happened. Her boss duly reported the event to the relevant agency, but somebody also leaked it to the local press. Mara never found out who. Her role was played up, and a prosecutor happened to read it in the morning paper. After months of uncertainty—Mara even called up the prosecutor herself one day to get clarity about her intentions—charges were brought. A local court found her guilty of manslaughter. The conviction was upheld by a higher court, which toughened the punishment. Now the case was headed for the Supreme Court. Would people in healthcare ever volunteer information about incidents again? Was this the death knell for nascent medical event reporting systems? Was patient safety going to be dealt a serious setback?

We wandered back into town, in search for a cup of coffee.

When we had slipped into the warmth of a bakery, shaken the snow off our shoulders and sat down near a window, I cocked my head, glanced at her, and sighed, wonderingly. She must feel like a vehicle, sent out to test-drive the law, I mused. If the country and its healthcare system would get their day in court, if they were going to create clarity on the rules for dealing with medical error, then this was not going to help Mara. The black sheep would be herded through one more splendid spectacle of public judgment, but it was no longer about the sheep, if it ever was. It was about the principle. And she was merely its embodiment. When it was all over, whatever the outcome, she would have been used up. Her purpose to larger interests played out, expired. A mere piece of detritus mangled through a criminal justice system in its quest for new turf, disposed once the flag had been planted. She would be remembered only in faint echoes of schadenfreude (thank God it wasn't me) and a waning trail of half-hearted collegial compassion (we're so sorry for you Mara). The disillusionment with her work setting, her colleagues, her union, the justice system—the world—was etched on her face. Vindication would remain elusive. The truth would not come out.

But is there truth in the aftermath of a little girl's medication death? Or are there only versions?

At the Supreme Court

A few weeks after the meeting with the lawyer, I saw Mara again. This time in the ornate halls of the Supreme Court. High ceilings soared up, up away from two tables, one for the defense and one for the prosecution. They were arranged in front of a regal podium decked out with a row of seats. When the justices had filed in and sat down facing both teams, the prosecutor reached for his version of the truth. I remember his craftiness, his cultural conformity to the conflict-avoidance of my adopted country. He was sitting down, not standing up. He was reading from a prepared script, not ad-libbing or grandstanding in front of his audience. His tone was measured, quiet, reverential. This is, I suppose, what court proceedings are supposed to do: Separate emotion from substance, sublimate conflict into negotiation, turn revenge into ritual.

Mara sat over at the other table, flanked by her lawyer. Hands in her lap, eyes cast downwards. As she sat there, the prosecutor's opening statement started rolling over her, his gentle voice reverberating around the hall unamplified.

Except it wasn't a statement. It was a story.

"The baby was born on the 24^th of February in the regional hospital," he intoned. He recalled the happiness of the child's parents and mentioned details to paint a picture of family bliss, soon to be disrupted by a treatment gone awry. "She had a normal birthweight, but showed some signs of spasms in her arm after delivery. Three days later, the spasms had become worse. She was given Fenemal, a cramp-reducer. After stabilizing on the 5^th of March, she was discharged. But less than a month later, the spasms came back. The infant was rushed to the emergency room and taken in for observation. Her Fenemal dose got increased to 5 milligrams (mg) per milliliter (ml) and she was discharged again two days later. The day after, her mother called the hospital. After consultation, the baby's Fenemal dose was increased again—over the phone—to a twice daily 2 ml portion of the 5 mg per ml mixture. On the 22^nd of April the baby was brought in as part of a routine checkup. Everything was normal."

He paused.

To recount his version of the truth, the prosecutor had created a narrative. Narratives are strong. He must have picked that up in class once, or in one of his many street fights. Or perhaps a story, or liking a story, understanding a story, is: simply what makes us all human. Mara must have heard versions of the story hundreds of times now, I thought. She must have turned it over and over in her mind infinitely, picking away at her role, plaguing herself by retrospectively finding opportunities to not make a mistake, to not become the centerpiece of this imbroglio.

Act one was over. The justices looked at the prosecutor, silently. Spellbound or bored silly? It was difficult to tell. Time to set the stage for a plot twist. Act two. A different ward: The ICU. A new medication. And, of course, the introduction of the villain.

"On the 12^th of May, the baby was admitted with a new bout of spasms, and sent to the ICU. Her Fenemal was increased to twice 2.5 ml, and she even received a bolus dose of Fenemal. But the spasms continued. The baby was then given Xylocard, a lidocaine-based medication, at 2 ml per mg. The spasms subsided. She was discharged again on the 16^th of May, off Xylocard, and back on the previous dose of Fenemal. But on the 18^th of May, her mother called the hospital to say that her baby was suffering a new onset of spasms, now lasting about five minutes each. In the evening, the child was taken to the hospital by ambulance and admitted to the pediatric ward. New spasms meant that she was transferred to the ICU later that evening."

With the baby back on the scene of the crime-to-come, everything was ready for Mara to make her entry. The lines of the two lead roles could now converge.

"Early in the morning of Sunday, 19^th of May, Mara showed up for work. There were not many patients in the ICU, things were quiet. The baby was doing better now. In preparation for her transfer back to the pediatric ward, Mara went to the medication room to mix the Xylocard solution."

He paused and picked up the two little cartons in front of him on the table. Then he waved them around.

"There, in the cabinet, were two packages. One containing an injection dose of 20 mg/ml Xylocard, and one with a 200 mg/ml Xylocard solution intended for intravenous, or IV, drop. Misreading the packages, Mara took the 200 mg/ ml to prepare the baby's drop, instead of the 20 mg/ml, as was prescribed."

The chief justice motioned that she wished to see the packages. They were handed over. Passed from justice to justice, they got handled for what they were in that context: Pieces of evidence in a manslaughter trial. The justices studied the packages with what looked like mild interest, but could just as well have been muffled puzzlement. What kind of evidence was this anyway? This was not just a common criminal instrument—a knife, a handgun, a fraudulent contract—this were pieces of highly-specialized medication, excised from their normal surroundings of thousands of normal, similar-looking packages that form the backdrop of a nurse's daily life. Now these two boxes looked quite out of place, floating along the court's elevated regal bench, examined by people with little idea of what it all meant. Questions must have mounted, one on top of the other. What was it with these peculiar Greek neologisms, and why were all these boxes: white with green or light-blue lettering, and what were these befuddling volume-weight fusions?

The prosecutor continued. Not much longer now. Act three. A rapid climax.

"That afternoon, back in the pediatric ward, the baby was hooked up to the new Xylocard drop, the one that Mara had mixed. But instead of subsiding, the infant's spasms quickly got worse. A pediatrician was called, and tried to intervene. But nothing helped. Not long after, the baby was declared dead. Post-mortem examination showed that she had died from lidocaine poisoning."

A story that makes sense, that is plausible, that has a powerful narrative arc and casts characters in recognizable roles of hero, victim, villain, bystander, can present a rather believable truth. And the prosecutor's story did. His plot painted a normal hospital, a normal, innocent little patient, attended to by normal physicians, suddenly all confronted by the sinister and totally unnecessary turn of events on a Sunday morning in May—the fatal denouement of Mara's mix-up. Quite impeccable. Quite logical.

A Calculation Gone Awry

But does that make it true? Consider another truth, the sort of "truth" that Mara had hoped in vain to bring out in the open on this day. After clocking on, on the morning of the 19^th of May, she received a little briefing from the night ICU nurse. The original prescription had been unclear and not been signed by the doctor who wrote it. The hospital (even the ICU) was equipped with a computerized prescription system, but the physician had been sitting at a terminal that happened to not be connected to the printer. Rather than moving to another terminal and print out a prescription, he wrote one by hand instead. Earlier that night the nurse had mixed a Xylocard solution with another physician's help, trying to divine the prescription. Now, in the morning, the doctor himself was asleep somewhere in the hospital, and, given that it was a quiet Sunday, nurses would not become popular by waking him up to ask a simple clarification. The night nurse showed the unsigned prescription and her medication log entry to Mara:

"Remember, 10 ml Xylocard," the doctor had said to the night nurse, who now relayed this to Mara. The infant, in other words, had received a total of 200 mg of Xylocard by mixing two 100mg/5ml syringes (the standard injection package: 100 mg of Xylocard dissolved in 5 ml of fluid) into a 40 ml glucose solution. But in the ICU, syringes were never used for IV drops, because they contain a weak solution. Syringes were for direct injection only. The ICU used vials, with a stronger solution, for IV drops. But pediatrics did not even have vials. They dealt with children, with little bodies, that needed no strong solutions. Pediatrics routinely discharged the prepackaged syringes into an IV drop instead. The ICU seldom had little infants, though, and no tradition of using syringes for preparation of IV drops.

Later that day, when the night nurse had long gone home, Mara noticed that the infant's drop was running low and decided to prepare a new one. The baby would be transferred back to pediatrics, but the move had gotten delayed. Remembering the "10 ml" reference from the doctor, and reading 200 mg off the medication log (as the prescription was unclear), she took two boxes that each contained a 5 ml vial with 200 mg/ml Xylocard. 10 ml total, and the figure of 200 mg—this was what the medication log said. She prepared the solution and wrote in the log:

Mara showed her calculations to another nurse, and also the pediatrics personnel who came to collect the infant. The pediatrics staff did raise a question, but it focused only on the dose of 4 mg/ml, not the solution from which it supposedly would come. Five days earlier, when the infant had been with pediatrics too, she had been on 2 mg/ml, not 4 mg/ml. The ICU confirmed to pediatrics that 4 mg/ml was now the prescribed dose. The baby was to receive 10 ml of the solution that was supposed to contain 1 mg of Xylocard for each ml.

But did it?

That night, Mara tossed in her bed. Her youngest son awoke a couple of times, rendering his mother restless. In the darkened bedroom, the events of the day came back to her. As far as she knew, the baby lived, she had gone off shift before anything went awry. But something did not quite add up. Why had the night nurse, normally so assiduous, accepted such a messy and unsigned prescription? She had even had to call help from a physician to mix the thing. And what about that log entry of hers? It had read "Xylocard 200 mg," but did that make sense? Xylocard 200 mg was meaningless by itself. 200 mg per what? Per...?

Mara sat up with a start.

Could it be true that she had taken two vials, instead of two syringes? They both contained 5 ml of fluid each, so any combination of two would amount to the 10 ml the doctor had wanted. The two packages were side by side in the cabinet which was so neatly organized on alphabet. But two vials meant...

She quickly ran the numbers in her head, peering into the darkness. Two 5 ml vials both containing 200 mg/ml Xylocard would have amounted to 2000 mg Xylocard, or 40 mg/ml, not 4! This would add up to a lot for a little infant. Too much maybe. In that case her medication log entry didn't make sense either. Take 10 ml with each ml containing 200 mg, and you would not get 4 mg/ml. You'd get an order of magnitude more. Ten times more. Forty.

Why had nobody caught it? She had had people double-check! Pediatrics had checked! Also, an entry about the solution would have had to be made on the IV drop before it went into the child—another double-check. What had happened? She would try to figure this out as soon as she was at work again.

On her next shift, Mara asked about the little girl. "She has died," was the answer. Her heart must have sunk. But determined to figure out what had gone wrong, and if she may have had any role in it, Mara went to the binder with prescriptions and flipped back to Saturday night. Where was it? Where was the prescription, that messy, unsigned prescription that her predecessor night-nurse had interpreted as "200 mg" Xylocard, setting her, Mara, up for a possible mistake?

The prescription was gone. It wasn't there. It had disappeared and would never be found again.

Years later, only a few weeks before the hearing at the Supreme Court, Mara would plead with her lawyer to bring up the missing prescription. He yielded not an inch.

"How can you bring up something that doesn't exist?" he asked.

"But," Mara countered, "we are not allowed to prepare medications without a prescription, there has to be a prescription, and in this case there was too. Somebody took it out!"

The lawyer sighed and was silent.

"Look," he said after a while. "This is not the time to introduce new evidence. And even if it was, you can't produce as evidence something that you don't have. It's that simple."

Mara's world must have spun around her. She was locked up inside a Kafkaesque entanglement that had erased any resemblance with the real world. Her mind must have cast around for anything stable, anything recognizable, anything sensible. Instead it was finding nothing to grab onto, no lifeline, no help. And no "truth."

“Mea Culpa”

What there was, and what had been introduced as evidence, of course, was her own medication log entry. The one that said that 10 ml of fluid, with each ml containing 200 mg of stuff, would amount to a measly 4 mg of the stuff per ml in a 50 ml IV drop. It wouldn't. It would yield ten times as much. She had recorded her own miscalculation—putting the truth out there, for all to see.

Not long after learning of the baby's death, complying with reporting procedures in the hospital, she wrote to her superior:

Stories of mistake can be so simple. "My mistake," Mara had recorded. Mea culpa. To many others in the hospital, such an unprovoked admission must have been a godsend. Not that they would ever say, of course. They would not have to. The legal aftermath itself would prove them right. Mara was in the dock. Again and again. Nobody else.

Not that this would necessarily feel natural to anyone involved in the saga as it unfolded. Take a story as experienced from another nurse's point of view. When the infant started to show an increase in spasms and other problems after being hooked up to Mara's IV preparation in pediatrics, nurses called the attending physician.

He responded by phone: "Up the flow, give her more."

They did. The problems got worse.

They called again. "Give her more, give her a bolus dose," was the instruction again. They did.

But this did not seem to help at all—in fact, things were going from bad to worse very quickly now. The attending anesthetist was now called by phone, but nobody answered. Another was found by calling through the intercom, but nobody showed. Only minutes later did the attending pediatrician show up in person. He ordered another bolus dose of Xylocard, but this had no effect either. The baby now needed 100 percent oxygen but she started vomiting into the mask, exacerbating her respiratory problems. The pediatrician ordered another bolus dose of Xylocard, thinking that this would finally stop the spasms. Then, during one attack, the girl presented respiratory failure. The pediatrician responded by intubating the baby, and cleaned the airways by suction. Then the anesthetist arrived. The baby got ventilated but the suction tube proved too narrow for her passages to be cleared. Another bolus dose of Xylocard got pumped into the IV port. Finally, a thicker tube was found and inserted, clearing her airway. It was all too late. The infant went into circulatory shock. Adrenalin, Atropin, and Tribonat were given, heart massage administered, even the defibrillator was pulled out. To no avail. The baby was declared dead not long after. A postmortem showed that the girl had ended up with 43 micrograms of lidocaine per gram of her blood. The therapeutic dose is less than 6 micrograms per gram of blood.

Even if Mara had mixed from the 20 mg/ml syringes and not the 200 mg/ ml vials, the infant would still have ended up with twice the therapeutic dose due to the volley of bolus shots during her final moments. Yet that is but one "truth" too. See the world from the pediatrician's perspective and another sensible story swims into view. The initial symptoms of lidocaine poisoning can include (yes) spasms. So the symptoms of too much Xylocard and too little Xylocard would have been similar, setting the physician onto a compelling plan to continue. Strong initial cues suggested his response was the right one. They had been confirmed before: This baby had responded well to the treatment of her spasms with lidocaine. The dose had been upped before, with good therapeutic consequences. He knew all this. And, for that matter, he never knew that the IV drop was administering the drug at ten times the ordered rate. The quality of his assessments and decisions could impossibly be rated against that knowledge—knowledge he did not possess at the time. That much would be "true."

But what did the doctors actually know? I remember Mara countering this even before the final trial. Did they ever diagnose the source of the spams? Mara would ask. No, they didn't. Did they have any idea why the child responded better to Xylocard than to Fenemal, even if Xylocard is not mainly intended to deal with spasms? Did anybody ever think to call in a neurologist? No. Did they ever ask themselves why the baby would suddenly develop such intense symptoms after getting back to pediatrics on Sunday afternoon? Not that Mara knew. Did they ever recognize their own role in the slippage of prescription routines? In taking a nap at work on a quiet Sunday morning and being really grumpy when awoken for no apparent good reason? In not bothering to get up and mosey 10 feet to another computer to print out a prescription for Xylocard, rather settling for a bunch of handwritten squiggles instead? In not showing up for many, many critical minutes when a little baby was suffocating in her own vomit, wasting away on some drip? And then giving order after order after order of poisoning lidocain? No, not that Mara would be aware. And who took that prescription away after the baby died? Where was it? And whose idea was it to start swapping a baby between pediatrics and the ICU, a ward designed in every way for taking care of big people, not little ones? Was any of those "truths" ever going to be brought out?

Criminal Law and Accidental Death

A legal system holds people accountable. But it does not allow people to hold their account. Mara had become a hostage of legal procedure and protocol, and she decried the shackles on what she was granted to say and when. At every turn in the legal plot, she went in to battle the limits, to break through the constraints. She wanted permission to give her account. She just wanted the "truth" to come out. But at every end, she came out broken herself. Her account would still be inside of her—biting, festering. And increasingly bitter and partisan.

A legal system constructs an account from its own pick of the evidence. It makes its own story. It is interesting that society may turn increasingly to their legal systems to hand out that story, to provide accountability after a terrible outcome. There must be something in that account that we find terribly attractive; more enticing than what the people have to say who were actually there. Mara, for example.

Of course, we could dismiss their accounts as exculpatory, as subjective, biased, ulterior. Still struggling to understand her own performance, Mara had told a lower court that she may have misread the package labeling. By the time she got to the Supreme Court, however, she indicated that this was probably not the case: She mistakenly believed that 200 mg/ml was what she needed to have. This would certainly have made sense, given the prominence of the figure 200 in the medication log, and the reminder to end up with a volume of 10 ml Xylocard in total. But look at how the Supreme Court chose to interpret the various accounts that Mara had tried to provide. Put up as a last-grasp attempt to exonerate herself, to "find an explanation afterward," the Supreme Court painted Mara as ditzy when it came to getting an account of what had happened that Sunday in May:

Whatever Mara offered, the sheer variety of her accounts had disqualified her as a purveyor of truth. In her stead, the Supreme Court was happy to provide the "certain conclusion" so sorely lacking from Mara's story. They speculated why Mara did what she did: She either "misread, miscalculated or took the wrong package" from the shelf—all because of "negligence." Mara did what she did (whatever it was), because she was careless. "She could have read the medication log more carefully, calculated more carefully or done any other double-check that would have revealed her error and its potentially fateful consequences."¹ But she did not. She was negligent. In the absence of a story from Mara that made sense, people turned to the legal system to serve them a story with a cause and a culprit. The cause was misreading, miscalculating, or grasping wrong due to negligence, and the culprit was Mara. Instead of listening to the protagonist, people legitimated a particular institution to get at the "truth" and meet out supposedly appropriate consequences. They may have thought, as many increasingly do, that this legitimated authority could deliver the veridical account—what really happened. For the one who was there could not be trusted to deliver an account that "expressed what she really remembered." She, after all, could "provide no certain conclusion as to why she did what she did."

Of course, judicial proceedings do rely on the insider account as part of their evidence base. Mara was given a voice—here and there. But she never called the shots. She spoke when spoken to: Merely proffering a hunch of answers to often inane questions gurgling from a tightly scripted ritual:

It sounded exasperated—feigned or real: "You don't know." If Mara did not know, then who would? She had been there, after all. Again, the incapability to give that final account, that deeper insight into the workings of her own mind that day, was taken as reticence, as foot-dragging. "You don't know" was taken, as it often is by the time adversarial positions are lined up in a criminal trial, not as "you really don't know," but as "you don't want to tell us."

I recall sitting in the lawyer's office with Mara when she offered the explanation in which she really believed she had taken the right package, the one she was supposed to take (as that was always the one she prepared IV drops from). There was no misreading, that had been a wrong explanation. But the Supreme Court justices would have none of that. They would not see the latest account as a genuine attempt of the insider to articulate what had happened, but as a ditch from the debris, as a ducking of responsibility.

Rational Systems that Produce Irrational Outcomes

And so we turn to our legal system to furnish us with the truth. Deploying rational techniques like those of a trial, rather than institutional authority (such as that of the Church) putatively allows us to arrive at true accounts and appropriate moral rules. But intense attempts at deploying rationality, sociologist Max Weber warned over a century ago, quickly deliver the opposite. The output of supposedly rational institutions is often—quite naturally, necessarily—irrational. There were many, both inside and outside the healthcare system, who thought just that about Mara's verdict. When a nurse herself reported a mistake, in an honest effort to abide by the rules and perhaps help prevent recurrence, it made no sense at all to have her end up convicted of manslaughter for the very mistake she voluntarily divulged. This was irrational. Even more poignantly, why she? Singling out Mara for this adverse outcome of a discontinuous, wandering processes of care delivery that counted many contributions from many contributors, made no sense whatsoever. And then, this was not the first or only medication adverse event ever; not a uniquely egregious occurrence. In the same year that Mara was first charged, more than 300 severe medication errors were reported to the country's health authority. Adverse medication events are "normal." They are the rule, or at least part of it, baked into the very fabric of delivering assorted compositions of volumes and weights and rates of substances through various means. This, moreover, is accomplished through a thoroughly discontinuous process, where gaps in the delivery of healthcare open up because of changes of medium (e.g. from oral to written to oral prescriptions or dosage orders), handovers from one caregiver to another between shifts, movement of patients between wards, transferral of caretaking physician, or other interruptions in workflow. Patients, prescriptions, orders, medications, and healthcare workers all cross departments, shift responsibilities, flow through hierarchies, and traverse levels of care, as a matter of routine. It would be easy, then, and quite rational, to show that Mara's adverse event was part of a systemic feature of healthcare delivery. So how a supposedly rational judicial process could come to the exact opposite conclusion is something that Weber would not have found surprising. The accounts of human error that a legal system produces can be so bizarre precisely because of its application of reason: The way judicial proceedings rationalize the search for and consideration of evidence, closely script turn-taking in speech and form of expression, limit what is "relevant", are institutionally constrained in their deferral to domain expertise, and necessarily exclude the notion of an "accident" because there is no such legal concept.

When you come up close, close enough to grasp how case content becomes subjugated by judicial form, close enough to hear the doubts of the victims about the wisdom of having a trial in the first place, close enough to taste the torment of the accused, to feel the clap of manacles around the expression of their own account, to experience the world from the dock and sense the unforgiving glare it attracts, a more disturbing reality becomes discernable. In the view from below, there is a deep helplessness: An account is created by non-experts who select bits and pieces, in a process that runs its own course and over which there is very little—if any—external control. To those present when the controversial event happened, and who may now be in the dock (as well as to many of their co-practitioners), the resulting account may well be bizarre, irrational, absurd. And profoundly unfair.

The Shortest Straw

Mara had hoped that the process in the Supreme Court would end up bringing out a real version after all the acrimony in lower courts. It did not. Instead of truth, she got an upheld conviction. Instead of vindication, she got something that she impossibly could consider "true" anymore.

Sitting in the twilight of her living room on a rainy day late in August, months after the hearing, I began to believe that her psychological devastation was due not just to the Supreme Court upholding the guilty verdict, including its heavier penalty. This may not even have been the chief source of her anguish. With her license to practice still intact, and the sentence turned into conditional time, it had few overt practical consequences (not that she could, or wanted to practice in the ICU ever again, by the way). No, I started to sense rather a resignation, a disillusion, a dizzying realization that progress toward truth is not a movement from a less to a more objectively accurate description of the world. She might have hoped that we all could learn the truth behind the death of the little girl. But there is no such truth to find, to arrive at, to dig out. No final account, no last word—only versions, jostling for supremacy, media-light, popular appeal, legal sustainability. And her version had consistently drawn the shortest straw. Again and again.