Nurse’s Criminal Conviction Could Chill Safety Investigations
June 1, 2022
EXECUTIVE SUMMARY
A former nurse was recently found guilty of negligent homicide related to a medication error. She admitted to overriding a safeguard before administering the wrong medication to a patient.
- Some healthcare leaders are critical of the verdict.
- The case may negatively affect safety investigations.
- Educate nurses about the extreme circumstances that led to the verdict.
A Tennessee jury recently found former nurse RaDonda Vaught guilty of negligent homicide for mistakenly injecting a 75-year-old woman with the wrong medication and causing her death, along with a second charge of gross neglect of an impaired adult.
Prosecutors initially charged Vaught with criminally negligent homicide, but the jury chose the lesser charges. The trial was closely watched in the medical community — and now some healthcare professionals fear it will have a chilling effect on patient safety investigations.
Investigations revealed Vaught injected the patient with the paralytic drug vecuronium instead of sedating drug Versed in December 2017. On May 13, Vaught was sentenced three years of probation.
Initially, the hospital did not disclose the patient’s death was related to a medical error when it reported the death to the county medical examiner.1 An anonymous whistleblower reported2 the fatal error in 2018, prompting an investigation by CMS.3
After the CMS report, Vaught was indicted, arrested, and charged with criminal reckless homicide and impaired adult abuse. The hospital fired her, and the Tennessee Board of Nursing revoked her license after a hearing in which she testified she had been “complacent” and “distracted” during the incident.4
Prosecutors alleged Vaught made 10 separate errors, including overlooking multiple warning signs. Court records claim that to use the medication, she would have had to look directly at a warning saying “Warning: Paralyzing agent.”
After the verdict, the American Nurses Association (ANA) and Tennessee Nurses Association (TNA) released a joint statement critical of the result, noting “the criminalization of medical errors is unnerving, and this verdict sets into motion a dangerous precedent. ... We are deeply distressed by this verdict and the harmful ramifications of criminalizing the honest reporting of mistakes. This ruling will have a long-lasting negative impact on the profession.”5
The Institute for Safe Medication Practices also criticized the verdict in a statement headlined Criminalization of Human Error and a Guilty Verdict: A Travesty of Justice that Threatens Patient Safety.6
Multiple Safety Measures Ignored
Prosecutors must have been motivated by the fact the nurse made a series of serious errors rather than one mistake that might be more easily understood, says Carol Michel, JD, partner with Weinberg Wheeler Hudgins Gunn & Dial in Atlanta.
“We don’t want to make criminals out of medical providers who are human beings, too,” she says. “They do make mistakes. Traditionally, that has been dealt with through the licensing boards and civil lawsuits. What sets this case apart is just the number of ways this nurse seemed to go around or defy the safeguards that were in place.”
The criminal conviction does not necessarily signal a change in how prosecutors will view medical errors, Michel says. The legal system and juries tend to be sympathetic to healthcare professionals who commit errors when they are trying their best to provide good care. In this case, it appears the jury concluded Vaught was careless to a degree that was unusual and could not be excused.
The important lesson might be for hospitals to ensure proper dispensing safeguards and to properly train employees on critical safeguards and procedures that must not be overridden, or if overriding is necessary, the importance of exercising extreme caution.
According to the CMS report, Vaught could not find Versed on the list of medications in the dispensing cabinet, leading her to initiate an override setting so she could enter VE into a search field. She selected the first result, the neuromuscular blocker vecuronium, which normally would come with a red box warning on the screen noting the medication should be used only with a stat order. But because the override function had been engaged, the red box warning did not appear.
Neuromuscular blockers were on the hospital’s list of high-alert medications, according to CMS, but there were no specific precautions in place to prevent the nurse from obtaining it with an override.
Vaught noticed that the medication was a powder and not the liquid Versed she expected, CMS noted. She never looked at the front label, and instead turned the vial over to read the reconstitution directions.
“The culture of the institution must be one that ensures safety procedures are followed and [emphasizes] why they are important. Part of her defense was that she wasn’t doing anything unusual with the override, that everybody does it,” Michel says. “That may or may not be true, but if the perception is that everyone is overriding these safeguards just to get their jobs done, you have a culture that says it’s OK to not follow the rules. That should worry a risk manager.”
Overkill After Professional Discipline
The criminal charges were overkill after Vaught had experienced consequences professionally, says Andrew J. Barovick, JD, an attorney in White Plains, NY, who represents plaintiffs in medical malpractice suits but previously represented physicians and hospitals. Barovick recalls when he was an assistant district attorney in Queens, NY, years earlier, a fellow assistant district attorney convicted a local obstetrician of murder. That case was significantly different from the Vaught medical error, he says, because the doctor had been performing abortions in poor conditions at a storefront clinic. Two women died.
The criminal conviction made more sense in that case because the doctor’s actions were particularly egregious, Barovick says. The state board had already revoked the obstetrician’s license for gross incompetence and negligence involving five other patients, but the board allowed him to practice while he appealed.
However, Vaught did not have a history of endangering patients, Barovick notes. The hospital’s safety protocols for medication dispensing seem to have contributed to the error.
It would be better to focus on how the hospital and other institutions can improve the safe delivery of medications. “I could have more of an understanding of the decision to prosecute [Vaught] if there was evidence that she was truly reckless and not caring, but that’s not something I saw,” Barovick says. “You have to look at her actions in the context of systemic errors in hospitals, but that’s a harder question for people to talk about. You don’t get any sense of justice against an individual when you start talking about why the system allowed her to make this serious error.”
The healthcare system also has failed to address the related issues that led to Vaught’s stress and distraction in performing this task. Nurses are routinely overworked and tasked with too many simultaneous duties without the ability to focus when necessary.
“I think what she did is, unfortunately, more routine that most people realize,” Barovick says. “Our nurses are put in these untenable situations in which they are worked too long and too hard, yet they are expected to maintain a perfect, unwavering level of vigilance that is unreasonable in those circumstances. When they inevitably fail, we hold them accountable as if it is only their fault.”
Fixing the systemic problems that affect patient safety is more important than seeking punishment for individuals who fail, even if they fail in obvious and tragic ways, Barovick says. Criminal prosecution is the easier path, but less effective in the long run.
“We have to do more than have criminal liability dangling over the heads of healthcare workers,” Barovick says. “It seems a particularly tone-deaf time to threaten criminal liability after they’ve just been devoting themselves to saving everyone from the pandemic for the past two and a half years, and putting their own lives at risk.”
A Chilling Effect on Investigations
The worst outcome from the Vaught case could be a chilling effect on patient safety investigations, says Kelli L. Sullivan, JD, shareholder with Turner Padget in Columbia, SC. Vaught was remarkably open and honest about her actions when testifying to the nursing board and cooperating with the CMS investigation, but that information was used against her in the criminal prosecution.
“She did the right thing and fell on her sword, told the truth. The problem is those statements were admissible later in her trial,” Sullivan says. “Now, we have to worry about these statements in investigations and licensure hearings being used against them. The whole purpose of these investigations is to make sure the truth comes out, but when someone risks jail time by telling the truth, a lot of lawyers would counsel their clients to take the Fifth.”
Sullivan worries that such concerns by nurses and other clinicians could hamper a hospital’s internal investigations of adverse events, with employees worried whatever they say could be used against them if criminal charges result. Whether such information could be used by prosecutors is subject to many factors, but just the fear of that outcome could make people hesitant to speak freely.
“That’s going to hamper your investigation and the ability to fix systemic problems,” Sullivan says. “There was evidence in this case that the hospital had been having problems with the dispensing cabinet and nurses were routinely overriding it to get the medications they needed. But if people are hesitant to talk about things like that for fear of criminal prosecution, the risk manager will never know what’s really going on, and you can’t fix a problem you don’t know you have.”
Patient care also could be affected in the opposite way, Sullivan notes. If a nurse needs to override a system to obtain medication but is too reluctant because of the Vaught case, the alternative might require calling or visiting the pharmacy, or contacting the physician for help. That could slow patient care in a dangerous way.
“From a nurse’s and a hospital’s perspective, you’re darned if you do and darned if you don’t,” Sullivan says. “You don’t want people overriding safeguards without a thought, but you also don’t want them so paralyzed with fear that they won’t override a caution when necessary and the patient ends up having an event because it took an hour to get the medication.”
Risk managers should anticipate nurses and other clinicians knowing about the Vaught conviction and remaining wary of its implications, Sullivan says. It would be useful to educate them about the unique circumstances of the case, showing how Vaught’s error was more than just overriding the system. Other critical steps, such as reading the name of the medication she removed from the cabinet, were missed.
“This is quite the extreme, a series of events that led to this tragedy. Some of them were in RaDonda Vaught’s control and some weren’t,” she says.
Sullivan notes the hospital settled with the patient’s family soon after the incident. The settlement agreement is sealed, meaning the family cannot speak about it publicly, which Sullivan says is unusual.
Unique Set of Factors
The underlying facts set forth seemingly unique events in this case, which likely influenced the prosecution and outcome, says Elizabeth L.B. Greene, JD, partner with Mirick O’Connell in Worcester, MA.
“To the extent that the same or substantially similar facts can be avoided in the future, this outcome hopefully will not be the dangerous precedent it is feared to be for holding a clinician criminally liable for a medical error,” Greene says.
The most significant future risk of this case is the fear it creates in the medical community and the risk that review of the headlines alone will trigger a chilling effect on the reporting and appropriate investigation of medical errors. Risk managers should seek to understand the underlying facts in this case to determine the likelihood of a similar outcome in their state.
“The peer review process is critically important to patients and providers, as it improves quality and safety by enabling the frank analysis of care, which is necessary following some unexpected or adverse outcomes. However, as the protections of the peer review process vary by state, it is important for risk managers to stay abreast of the parameters of peer review protections in their state as well as any changes to federal law impacting peer review,” Greene explains. “In states that have robust peer review protections, risk managers should consider reassuring providers now and emphasizing the importance of understanding and complying with the letter of the law on peer review and its value in evaluating and improving care.”
Risk managers should not put their employees at risk of criminal punishment when investigating medical errors as long as they invoke peer review processes in jurisdictions that sufficiently protect those processes, Greene says. Consult with legal counsel as necessary to help maintain the privileged status of the peer review processes.
“However, caution must be exercised by all risk managers, particularly those who practice in jurisdictions where the peer review processes are not or may not be sufficiently protected,” Greene says. “The variability in state laws on protection of peer review is significant, and the interpretation of this law may be changed by case law or legislative action. As such, hospital risk managers should consult with experienced legal counsel periodically to ensure there are no changes that should impact how the risk manager implements and guides on the peer review process.”
Most medical errors that allegedly cause harm are addressed in the civil, not criminal, courts through litigation of medical malpractice cases, where the providers and hospital systems are subject to financial risks, but not risks of criminal conviction.
“Only time may tell whether this case represents a dangerous precedent, as many critics contend, but a risk manager’s best tools are to carefully follow the peer review laws, regulations, and their hospital’s policies when investigating medical errors,” Greene says. “Consult with legal counsel experienced in the peer review and quality assurance processes periodically and when you have questions or concerns.”
REFERENCES
- Office of the Medical Examiner. Report of investigation by county medical examiner. Dec. 27, 2017.
- Centers for Medicare & Medicaid Services. Intake information. Oct. 5, 2018.
- Centers for Medicare & Medicaid Services. Corrective action plan. Nov. 8, 2018.
- Tennessee Board of Nursing. Notice of hearing and charges and memorandum for assessment of civil penalties. Sept. 27, 2019.
- American Nurses Association, Tennessee Nurses Association. Statement in response to the conviction of nurse RaDonda Vaught. March 25, 2022.
- Institute for Safe Medication Practices. Criminalization of human error and a guilty verdict: A travesty of justice that threatens patient safety. April 7, 2022.
SOURCES
- Andrew J. Barovick, JD, Barovick Law, White Plains, NY. Phone: (914) 371-3600. Email: [email protected].
- Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: [email protected].
- Carol Michel, JD, Partner, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta. Phone: (404) 832-9510. Email: [email protected].
- Kelli L. Sullivan, JD, Shareholder, Turner Padget, Columbia, SC. Phone: (803) 227-4321. Email: [email protected].
A former nurse was recently found guilty of negligent homicide related to a medication error. She admitted to overriding a safeguard before administering the wrong medication to a patient. The case may negatively affect safety investigations.
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