From the current Massachusetts Lawyers Weekly:



Are the crime lab scandals ‘Public Safety’s Chernobyl’?
By: James M. Doyle February 15, 2018


The chemotherapy dose required by the 1994 experimental breast cancer protocol was already high. Then the Dana-Faber Cancer Institute administered four times that dosage to Betsy Lehman, the health columnist for The Boston Globe. Lehman died within days. For two months the hospital didn’t realize that the overdose had caused her death.

The media coverage was relentless, and its effect was electric. People felt that if this horrific botch was possible at Dana-Farber, it was possible anywhere. As one leader in the battle against medical error put it, Lehman’s death was “Patient Safety’s Chernobyl.”

The Lehman tragedy accelerated the recognition that most medical errors are (like the Chernobyl meltdown) system errors, not the result of a solitary practitioner’s mistake.

That re-orientation led to action. Massachusetts moved toward building the health system’s capacity for “forward-looking accountability” — for looking beyond blame for tragedies and focusing on preventing recurrence. It eventually created a state agency, The Betsy Lehman Patient Safety Center, with the mission of understanding the hidden system-based sources of error.

Now, Massachusetts, the bluest of blue states, has seen 30,000 criminal convictions thrown out after the exposure of faked drug test results supplied by two state chemists, Annie Dookhan and Sonja Farak.

Each faked test created the possibility of an extended pre-trial detention, a wrongful conviction, a prison term, a criminal record, a dismembered family — a wrecked life.

Aggregated, the faked tests created a certainty of tens of thousands of “wrongful dismissals” and failed prosecutions. (Counterfeit drug “false positives” among the 30,000 must have been far outnumbered by genuine drug cases that the lab frauds required terminating.) If it can happen here … well, it gets your attention.

Can this fiasco be “Public Safety’s Chernobyl” and lead to the same forward-looking reforms that followed Betsy Lehman’s death?

On the surface, the situation doesn’t seem promising. The drug lab scandals present, in Dookhan and Farak, two excellent examples of the criminal justice system’s favorite causal explanation: the lone “bad apple” practitioner who brings about a miscarriage of justice.

Although these “bad apples” have done their harms in wholesale lots, that may not be seen as changing the mechanism. Firing, charging, locking up the “bad apples” might be accepted as all that is required.

But a moment’s thought shows that Dookhan and Farak didn’t do it — and couldn’t have done it — on their own. Upstream, someone hired them and designed the lab protocols and set the workload. Downstream, supervisors passed along their outputs, and a whole system of prosecutors, defenders, judges and jurors failed to catch their frauds, and for years.

All of these players were acted on by each other and by an encompassing environment that generated huge caseloads and assembly line production pressures.

The safety literature that has grown out of events like Chernobyl holds that when an employee zigs when she should zag, it is for a reason. Often, the reason is missing information, fatigue or innocent misunderstanding.

Even with deliberate rule-breakers like Dookhan and Farak, the direction of their errors (always toward incriminating, positive tests) is a response to incentives and barriers created by others. Should those same features be left in place for the next chemist who comes along? Should the impotent court review processes be left unchanged? Did we need to submerge the labs under all of these minor drug cases in the first place? (After all, the world doesn’t seem to have come to an end because of their dismissals.)

If the question is, “Who has to do better next time?” the answer should be, “Everyone involved — including everyone who created the incentives for, or failed to anticipate or to intercept Dookhan’s and Farak’s frauds — not just the two ‘bad apples’ themselves.”

There is an opportunity here. The federal National Institute of Justice, through its Sentinel Events Initiative, is inviting states and localities to explore a non-blaming, all-stakeholders, forward-looking learning review process in criminal justice. Massachusetts should pursue the invitation and lead in starting to build in public safety what it has supported in patient safety: a protected harbor where the focus can be on cutting the risks of wrongful convictions, mistaken releases, avoidable police shootings, and other errors rather than on simply looking for someone to hang, and leaving it at that.

Until the next time.

James M. Doyle is of counsel at Bassil & Budreau in Boston. He is an author and a consultant to the National Institute of Justice.