Diana Campion, a nurse practitioner who lives in Florida, recently contemplated going back to bedside nursing part-time. Doing so would require refreshing a skill set she hadn’t used for a few years — titrating intravenous drips and performing other complex nursing tasks involved in managing sick, complicated patients. Given the soaring demand for nurses, it initially seemed worthwhile.
But after hearing about the highly publicized verdict handed down in the case of RaDonda Vaught, a Nashville nurse whose medication error led to the death of a 75-year-old woman, as well as verdicts in several other recent criminal cases against nurses who made medical errors, Campion decided against it.
To her, the verdicts communicated that when nurses make mistakes, their careers can be destroyed. “If there is a fatal error, it’s the nurse that will stand alone,” Campion said. “It’s not worth it.”
American health care systems are encouraged to strive for a “culture of safety,” which frames accountability as something to be shared by individuals and institutions. But in reality, both health care facilities and the law sometimes treat medication errors as individual failures rather than systemic ones. When that happens, it’s nurses who often take the blame for institutional problems.
“Nurses especially are the low-hanging fruit,” said Edie Brous, a nurse and attorney in East Stroudsburg, Pennsylvania, who specializes in professional malpractice law and has written about criminalizing medical errors. Many people are involved in medical treatment —including doctors and pharmacists — but nurses often take the fall because they ultimately administered the drug, she said.
Vaught’s verdict is unusual in that it happened at all. Nurses typically aren’t charged with crimes for medical errors. More typically, medical errors are addressed through licensure boards and occasionally in civil lawsuits.
Additionally, the verdict comes when America’s nurses are in a particularly tough spot. The pandemic has led to staffing shortages that have left many in the profession frightened and burned out. “Nurses are fried,” said Brous.
At a time of enormous strain for the profession, Vaught’s case threatens to undermine patient safety by blaming nurses for problems that are hospitals’ to fix. The alienation that results not only reduces the likelihood nurses will help improve the systems in which they work, but also risks driving essential workers away from the profession.
Already, nurses like Campion have determined that the benefits of working at the bedside are not worth the risk. If more follow in her steps, hospitals could get less safe for providers and patients.
On the day after Christmas in 2017, RaDonda Vaught was working a shift as a “help all” nurse in the neurologic intensive care unit at Vanderbilt University Medical Center. “Help all” is what it sounds like: The job involved multitasking, helping with nursing needs across the unit as they arose in real time. But that wasn’t all — Vaught was also orienting a new employee during her shift.
At the time, Vaught had been a nurse for a little over two years. She had no violations on her record.
She was asked to administer Versed, a sedative, to a patient named Charlene Murphey. When Vaught couldn’t find the medication in one of the hospital’s electronic prescribing cabinets, she manually overrode the machine’s system to get it, a fairly common practice in that hospital at that time due to a persistent software problem. However, instead of taking Versed out of the cabinet, Vaught accidentally obtained and administered vecuronium, a powerful paralytic.
Murphey died the following day as a result of the error. Vanderbilt fired Vaught but did not report the medical error to state or federal regulators as it was required to do. Eventually, the hospital settled a civil lawsuit out of court with Murphey’s family.
In late 2018, an anonymous tip alerted the Centers for Medicare and Medicaid Services and the Tennessee Department of Health to Vaught’s unreported medical error. The Tennessee Bureau of Investigation found multiple instances of wrongdoing and coverups on the hospital’s part. According to later testimony of a Tennessee Bureau of Investigation (TBI) agent, Vanderbilt bore a “heavy burden of responsibility” in Murphey’s death. However, the health department did not punish the hospital; it only punished Vaught, ultimately revoking her nursing license.
But the most surprising part of Vaught’s story is what happened next. After an investigation, the Nashville District Attorney’s office indicted her in 2019 on two criminal charges: reckless homicide and impaired adult abuse.
Criminal charges for medical errors are rare
It was an unusual move to charge Vaught, said Robert Gatter, a health law expert at Saint Louis University. Generally, he explained, if someone in the US wants to pursue legal action for a medical error, they sue for compensation through the civil court system.
In contrast, the goal of criminal cases is not to compensate, but to punish.
“The criminal law is generally only used in health care when a provider is using their position to intentionally harm others,” said Gatter. Courts have tried so-called “mercy killings” — medically assisted deaths for terminally ill people — as criminal cases. Other well-known criminal cases against providers include that of Christopher Duntsch, an incompetent neurosurgeon who continued operating despite a string of catastrophic outcomes for his patients. Duntsch only stopped performing surgeries after being convicted in criminal court of causing serious bodily injury to an elderly person. He was sentenced to life in prison.
It’s not clear why the Nashville district attorney decided to prosecute Vaught’s case — after all, she had already had her nursing license revoked. District attorneys rarely prosecute cases of medical error in criminal courts, especially ones in which the wrongdoing does not appear to be intentional.
But when they do decide to prosecute, these decisions are often politically driven, said Brous. “They want to look like they’re tough on crime,” she said. “They want to be high-profile during an election year or when they’re running for reelection. And this gets in the newspaper.”
The office of Nashville’s district attorney, Glenn Funk, responded to scrutiny of his decision to prosecute Vaught’s case with a statement. “This was not a case about a simple mistake,” the statement read. “This was a case about gross neglect,” of which the statement listed 18 instances.
In late March, a jury found Vaught guilty of criminally negligent homicide and abuse of an impaired adult, charges that could carry up to 8 years of prison time. Her sentencing is scheduled to take place on May 13.
Punishing individuals for medical errors leads to less safety for patients
RaDonda Vaught’s case — where a medical error is treated as an individual, criminal failure rather than a systemic one — is rare, but not unprecedented. In another recent, less well-publicized case, a Philadelphia nurse was charged with felony neglect and involuntary manslaughter when her nursing home patient died after a fall; she had neglected to conduct neurological checks after the fall, reportedly because she was providing care to 38 other patients in the facility.
The argument here is not about whether nurses should be held accountable for their errors; everyone I spoke with about Vaught’s case agrees she bears responsibility for her actions and should face consequences. The real issue is that criminalizing a nurse’s error lets hospitals off the hook for the systemic changes that would improve patient safety.
“Almost no mistakes happen in a hospital by just one person,” said Gatter. Systems exist to prevent medical errors, he said. If those systems don’t work or exist only on paper, errors will happen.
In this case, the system failures were clear: During an unannounced visit to Vanderbilt University Medical Center in late 2018, federal investigators found multiple deficiencies, some of which placed patients at “serious and immediate threat,” according to the 105-page memo documenting the details. For example, hospital policies didn’t require that a second nurse sign off on the use of a highly dangerous medication like vecuronium, nor did it require that patients receiving sedatives be hooked up to a heart and lung monitor. Focusing the blame on one nurse’s error shifts the attention away from those deficiencies.
“I’m quite concerned that this nurse is getting thrown under the bus, and in the hubbub of giving her a jail sentence, that the system itself will escape close examination,” said Gatter.
Even if a nurse were solely responsible for a medical error resulting in patient harm, the way to prevent that nurse from causing further harm is to revoke their license, said Gatter. It’s much harder to explain how punishing a nurse with jail time further prevents them from endangering others.
However, it’s easy to see how that type of punishment can itself create and compound safety risks, he said.
That’s because severely punishing individuals for systemic problems has a chilling effect on others’ willingness to report mistakes.
“By instilling the fear of severe penalties … cover-ups are sure to follow,” wrote the Institute for Safe Medication Practices (ISMP) in a scathing analysis of the case. If a practitioner makes a medication error that doesn’t cause patient harm and knows people who make errors can be charged with crimes, the ISMP asked, what’s their incentive to report the error?
Less transparency in error reporting also means hospitals have fewer opportunities to correct big problems. That means faulty systems stay in place, which translates into more vulnerability and stress for health care providers and less safety for patients.
“I would never get on an airplane today if I thought that if a pilot made a mistake, he was going to the big house,” said Brous. “Because they’re not going to report mistakes that way, and that doesn’t keep the next pilot from making a mistake.”
Mark Rothstein is a health law expert at the University of Louisville who is on an external advisory board to a group studying genetic privacy at Vanderbilt University Medical Center. I asked him if there could be any benefit to sending a nurse to prison for a medical error. In response, he raised questions about what the public expects of workers operating in high-risk professions.
“What do you get from prosecuting police officers?” he said by way of comparison. “Police officers make mistakes all the time. Sometimes they’re minor, sometimes they’re major — but if the recklessness, the culpability, the indifference to the public rises to a certain level, then the public is demanding a criminal prosecution as a form of deterrent.”
The consequences for professional malpractice should ideally deter wrongdoing without discouraging people from entering the profession altogether — but finding that balance is challenging. Of Vaught’s case, Rothstein said, “Whether this would have any deterrent effect on nursing practice, I haven’t the faintest idea.”
This verdict is landing at a time of dangerously low morale among nurses
American nursing was under enormous strain well before the pandemic. But with the US population aging, surging retirements among bedside nurses and nurse educators, and nurse staffing levels reduced ever lower to contain costs, the pandemic has tipped parts of the country into a full-on nursing shortage.
The last thing the profession needs is another reason for nurses to leave jobs providing direct patient care, but that’s exactly the effect the Vaught ruling is having, said Janice Maloof Tomaso, a nurse in Marshfield, Massachusetts.
When nurses see other nurses thrown under the bus by their employers, they are disincentivized from taking on the high-complexity work of caring for sick patients because of the increased threat of liability, she said — even if they are nowhere near Tennessee. While the exodus is mostly anecdotal for now, the anecdotes are numerous.
“We are all her — every single nurse,” Maloof Tomaso said of Vaught.
The fact that Vaught’s case was a product of a local prosecutor’s decision is irrelevant to many nurses’ decisions, as is the coming result of the sentencing hearing. “The damage is already done,” said Maloof Tomaso. “People are horrified that she even went through this.” All nurses have made mistakes and many are thinking, “‘that could have been me, and I’m not sticking around for it,’” she said.
There’s a better way for state legislators and hospitals to handle medical errors
There are currently few legal barriers to prevent district attorneys from bringing criminal charges in other cases of medical errors leading to patient harm. However, if state legislators changed laws to prevent prosecutors from charging health care providers with criminal homicide or manslaughter charges on the basis of medical errors, it would make it harder to criminalize unintentional mistakes.
It’s really our nation’s hospitals that could and should lead the charge on dealing with medical errors in a way that sustainably improves patient safety, said Brous. There are models for this, she said: In 2006, after three babies died as a result of a medication error in an Indianapolis hospital, it was the hospital that took responsibility.
“Whenever something like this happens, it is not an individual responsibility, it’s an institutional responsibility,” Sam Odle, the hospital’s president and CEO, told reporters at the time. As Brous remembers it, the institution’s representatives acknowledged it lacked procedural safeguards necessary to prevent the error and spoke of the nurses who had administered the medication as secondary victims traumatized by their system’s failure. “That’s what hospitals need to do,” she said.
The voices of nurses themselves play perhaps the most important role in forging a better way ahead. “We’re silenced a lot,” said Brous. “Nurses need to have a voice that’s being heard.”
Original Article: A nurse made a fatal error. Why was she charged with a crime? (msn.com)