Executive Summary
Kentucky recently enacted a law protecting healthcare workers from criminal prosecution related to medical errors. The action comes after a Tennessee nurse was prosecuted for a fatal medication error.
- The law protects all clinicians in Kentucky.
- Workers still can be prosecuted for willful harm.
- Healthcare workers still can be sued civilly.
The state of Kentucky has responded to the sensational criminal prosecution of a nurse in neighboring Tennessee by enacting a law that shields healthcare providers from criminal prosecution for medical errors. The law was signed by Kentucky Gov. Andy Beshear and had been strongly supported by the Kentucky Nurses Association. Attention to the risk of criminal prosecution after medical errors was heightened by the 2022 felony homicide conviction of nurse RaDonda Vaught in Tennessee.
A Nashville, TN, jury 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. Vaught is serving three years’ probation. She injected the patient with the paralytic drug vecuronium instead of Versed in December 2017. (For more on that case, see HRM, June 2022, p. 61, “Nurse’s Criminal Conviction Could Chill Safety Investigations.”)
Kentucky’s new law is the first in the country to directly address the criminal prosecution of healthcare workers in such a situation, applying not only nurses but all other clinicians. The law says, “a healthcare provider providing healthcare services shall be immune from criminal liability for any harm or damages alleged to arise from an act or omission relating to the provision of health services.” However, the law does not protect those accused of “gross negligence or wanton, willful, malicious, or intentional misconduct.”
The law may give clinicians some relief, at least in Kentucky if other states do not follow suit, but the initial fears of increased criminal prosecution after Vaught’s case appear not to have come true so far. Since Vaught’s conviction, there does not appear to have been any increase in the number of similar cases based on that matter and the outcome of such, says Craig Creighton Conley, JD, shareholder with the Baker Donelson law firm in Memphis, TN.
However, there is a matter in Iowa, where an LPN is facing criminal charges in the death of an 87-year-old man at an Iowa nursing home, he says.
The LPN was arrested March 21, 2024, and charged with felony wanton neglect of a nursing home resident. The resident had recently undergone a tracheostomy, requiring a suctioning machine to be kept in his room to unclog his airway as needed.
Prosecutors allege that the resident died after the LPN failed to suction his airway despite repeated requests from several colleagues, Conley says. The LPN was working as a temporary contract employee at the facility at the time.
“Based on the foregoing, the risk does not appear to have become higher as it is not evident that there has been an increase in the number of criminal prosecutions of healthcare workers,” he says. “Nevertheless, the risk remains, as is obvious from the recent charges filed in the Iowa matter.”
Conley says he is not aware of similar laws or other protections being enacted in other jurisdictions.
“It is difficult to say whether more should be done given that there has not been a relative increase in the number of prosecutions of healthcare workers for medical events,” he says. “I am not intimately familiar with the facts of the matter pending in Iowa, but based on the alleged facts, it appears that criminal prosecution of healthcare workers may be limited to the more egregious set of facts and allegations, leaving the remainder to be handled through the civil law system and/or licensing boards in the various states.”
Whether criminal prosecution is necessary for patient safety depends on the alleged conduct of the healthcare worker, Conley says.
“In other words, whether such prosecution is needed is dependent on the alleged malfeasance and the degree and extent of such,” he says. “I don’t believe there is a cookbook method as to when criminal prosecution is necessary, and such should be taken on a case-by-case basis.”
Source
- Craig Creighton Conley, JD, Shareholder, Baker Donelson, Memphis, TN. Telephone: (901) 577-2290. Email: [email protected].
The state of Kentucky has responded to the sensational criminal prosecution of a nurse in neighboring Tennessee by enacting a law that shields healthcare providers from criminal prosecution for medical errors.
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