Professional Negligence or Just OK?

September 11, 2020

The one new project that subsumed all of my time for so many months was halted (screech) when international borders closed on March 11th, 2020. When you think big you need to focus, but there are times when playing small ball makes more sense. So, as I waited for clarification on something completely outside of my control – the timeline for border re-openings during a pandemic – diversifying my efforts with a handful of ‘passive’ income producing ventures seemed like a better idea than binge watching TV shows. One of the items on this summer’s to-do list was to consider deleting this blog. With attention spans shortening, and spin doctor “influencers” reigning, I’m wondering if personal blogs by people like myself have not already “jumped the shark”. There’s no doubt I’ve been otherwise occupied and negligent about updating the blog, and I do nothing to promote it. How I got from that thinking process of blog-writing negligence and deleting this blog to the rest of this post is a reach, but it is not atypical for the way my mind functions. (sigh)

You never hear the term “Negligent Homicide” but more and more I’ve been noticing its relevance as 2020 events unfold in the US. I’m not an attorney, so look up the term Professional Negligence yourself and let your mind travel to what happens when it seems (granted – from the outside looking in) that a national leader does not pay requisite attention to their PDB, and an attack by a foreign adversary occurs as was predicted and, seemingly, ignored. Or, think of another leader who decides not to inform the public of a pandemic’s real danger so that people go about their daily business and travel thus unknowingly placing themselves and others at risk that ends up in enormous damage to lives and livelihoods. Or, think about someone in another place of authority who is a good person themselves, but looks the other way when one of their brothers commits the ultimate crime, and by virtue of doing so helps them cover it up. In another 2020 example, the office manager for a large firm couldn’t be bothered installing life saving equipment and preventative measures that most agree are needed, but are not legislated, and some employees die. Where do you draw the line? Where would you draw it if one of your family members were the one who paid the ultimate price?

Should there be no personal accountability for these cases simply because of the positions of authority that people hold? Are these simply cases of “Moral Hazard” that do not rise up to the level of “Negligent Homicide”? Or, should the individuals themselves be held to account for their actions or inactions? When professionals are permitted to repeatedly avoid accountability we continually lower the bar for the next person and that leads to more negligence. That’s logical, isn’t it? I’m not advocating either side, and due process is always required, but think about the question and make up your own mind.

The definition I’ve found is: “Whenever the conduct of a professional while in the process or as a result of rendering services create circumstance that lead to the death of another individual, then that professional has committed negligent homicide.” So, it can be something you do not do, as well as something the individual does – it is about “conduct”. Professionals are responsible for the choice of not doing something as well as what overt actions they take.

Think of it this way: You’re a caregiver at a daycare. Your kids see a playground off in the distance, and as is their nature, they start running toward it. Between here and there lies an 8 lane highway. You’re the person with the knowledge and responsibility to apply the requisite care, but as the cars speed by you do nothing to stop the kids from doing what’s in their nature and starting to cross. Moreover, every once in a while an older child will stop and look back to you for guidance. Each time you tell them: “Don’t worry, those cars will not hit you. As soon as you get into the highway, they will magically disappear. Go ahead and run to the playground as if you were running through a field of daisies. You can’t let the cars stop you from pursuing your happy life.”

Of course, the inevitable begins to happen. Those caught in the middle are already committed. And as the person in charge, you continue to tell the kids not to worry about the ones that don’t make it across, they are very few. There probably is no law stipulating what you, the caregiver, should have done in that exact event – so are you the caregiver in the clear or is some accountability required? Decide for yourself whether this is a case of negligent homicide. Then consider whether that same standard should be applied to the other cases above it.

You may contend that a child doesn’t know any better, and adults make their own decisions, so this is a false analogy. You’d be right in making that statement, if there were not a “social contract” that has existed for decades whereby the electorate or the employee base grants access to the information resources that can qualify the threat in return for an assumption that the person given the authority is proactively transparent, in a timely manner, about the threat level. To a certain extent, we place ourselves in their care. Here’s where the grey lines come in. It’s in our nature to take the train or bus to work each day, just like it is in the child’s nature to run to the playground. It’s in our nature to take that airplane to the meeting cross country or to attend a conference that ends up spreading the virus to 20,000 people. When people at high levels of responsibility have the information to qualify the threat and take no actions to prevent harm – do we all agree that is just ok now, or should we stop the downward spirals by expecting some real accountability to go along with the big paychecks and the power? Do the ones who make it across continue to play happily on the playground or do we contend with the conduct leading to the results on the highway?  How egregious do these actions, or inactions, need to be before lines are drawn? Is the very question itself naive in 2020?