One Year After Landmark Case, Criminal Convictions Remain a Risk for Providers
May 1, 2023 8 minutes read
By Greg Freeman
EXECUTIVE SUMMARY
Criminal prosecutions of clinicians continue after a highly publicized case in 2022. Recent charges indicate nurses and other healthcare workers remain at risk.
- Rehabilitation centers and nursing homes often are the source of incidents that lead to criminal charges.
- Some prosecutions seem justified by the circumstances, while others are questionable.
- The risk of prosecution may make some clinicians reluctant to report errors.
One year after a Virginia 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, criminal convictions continue to worry the healthcare community.
Vaught is serving three years’ probation. She injected the patient with a paralytic drug instead of Versed in December 2017.1
Healthcare workers closely watched the Vaught case. Many worried Vaught’s criminal conviction signaled a perilous change in how medical mistakes would be treated. Some critics speculated criminal convictions would undermine safety investigations because providers would be fearful of reporting mistakes or fully cooperating with adverse event investigations.
In March, a Michigan nurse was found guilty of second-degree murder and possession of methamphetamine after a 3-year-old patient died on her watch in June 2022 during an overnight shift. The nurse was under the influence of methamphetamine. The child was on a ventilator and was found the next morning with the trachea tube disconnected. The nurse was incoherent.2
In February, a former nurse at an Ohio nursing home was sentenced to three years of probation and ordered to surrender her nursing license after a patient’s death in May 2022. The nurse removed a 72-year-old patient’s tracheotomy tube to clean it and failed to reconnect his oxygen afterward. Another nurse found the patient dead an hour later.3
It is likely criminal prosecution of healthcare workers is not becoming more common but is more visible now, says Kelli L. Sullivan, JD, shareholder with Turner Padget in Columbia, SC.
“I don’t know that we’re seeing that many more. I just think they’re getting a whole lot more press after RaDonda Vaught,” Sullivan says. “It’s a shame that happens, but our healthcare system, and especially our nurses, are just overworked. You’re going to have an error, and unfortunately, sometimes they result in life-altering consequences.”
Sullivan suspects the rate of criminal prosecutions is about the same as it was last year, but healthcare professionals are much more aware of the risk. The thought of going to jail for a patient error probably was not on their minds much before the Vaught case, but now they think more about how a mistake could lead not only to civil litigation and loss of license, but also criminal charges.
Understaffing increases the risk for healthcare workers. Sullivan encourages them to push back on chronic understaffing.
“When it is a regular thing — not like a one-time Friday night where five people call out sick, but when it’s a regular occurrence — you need to make note of it and raise it to someone’s attention in a way that is verifiable and documented. That could be a text message, email, committee meeting, or something like that,” Sullivan explains. “If a nurse is working at a facility that’s frequently understaffed and she reports it 345 times, and then somebody makes a mistake that hurts someone, then it’s a little more understandable. They’re less likely to get prosecuted, and they have a bit of a layer of protection for themselves.”
Sullivan worries continued prosecutions and media coverage could discourage some people from entering healthcare at a time when more nurses are desperately needed. A promising high school student may wish to become a nurse but choose a different profession where an honest mistake would not result in criminal charges.
Legislation could help avoid that outcome by providing some type of protection from criminal charges when the nurse’s intentions were good, similar to common Good Samaritan laws. “I think that there are things we could do legally as a country with regard to our laws and with regard to society, but unfortunately, other than waving the red flags when they exist, I don’t think there’s much more that nurses themselves can do,” Sullivan laments.
Some Charges Justified
Not all criminal prosecutions of healthcare workers are outrageous or even borderline, notes Andrew J. Barovick, JD, an attorney in White Plains, NY, who represents plaintiffs in medical malpractice suits but previously represented physicians and hospitals. In some cases, like the Michigan nurse accused of using methamphetamine on duty, criminal charges seem entirely justified, Barovick says. Barovick also notes a Wisconsin case in which a rehabilitation center nurse was charged in November 2022 with two felony counts of elder abuse for allegedly amputating a hospice patient’s foot without a physician’s order or patient’s consent.4
“I looked at a number of news articles and it seems like a lot of what’s become newsworthy lately involves nurses in rehab or nursing homes. They’re doing outrageously bad things,” Barovick says. “I saw that there was another nursing home incident in Seattle where a woman essentially ignored a patient’s bed sores for about six months prior to the patient’s death and appears to have contributed to the deaths. That’s another case where criminal charges were filed.”
Barovick also notes a Michigan case in which a nurse was charged with a felony for working with a suspended license.5 “That seems awfully harsh when there was no injury to the patient,” he says. “If that had been a physician who had his license lapse or it was out date, maybe under some kind of censure or suspension, I seriously doubt that he would have been criminally charged like this nurse was for continuing to work. I just thought that sounded kind of extremely harsh and unfair.”
Not all criminal prosecutions of nurses are an injustice, Barovick says, but he would like to see prosecutors go after physicians with equal fervor. “They have their very flawed system of discipline, and they just seem to generally avoid the criminal justice system,” he says.
Questionable prosecutions may be driven by how understandably upset people can be when they trust healthcare professionals to care for their loved ones and then find the providers made errors or even misrepresented themselves, Barovick says. It is similar to the motivation that drives many medical malpractice lawsuits, but Barovick says it is misdirected in some of these prosecutions.
To strengthen their liability shield, particularly in nursing homes, healthcare employers would be well advised to supervise nurses more carefully, train them more often, and provide more physician oversight. “I think it would be good for everybody to have physicians more actively involved in supervising these nurses and available to them if they have questions about care,” Barovick says. “Of course, that’s not going to help with a case like the one where the nurse cleaned the patient’s tracheostomy mask and then forgot to reattach the tubing. That’s just inexcusable, and it doesn’t upset me to see that she was charged criminally.”
While criminal prosecutions remain relatively rare, they shine a light on the complex healthcare system that can lead to tragic results, says Jennifer Flynn, CPHRM, risk manager with Nurses Service Organization.
“On one side, you have a patient who sustained an injury as a result of either the actions or the failure to act on the part of the healthcare provider, whether that be a nurse, or a pharmacist, or another provider across the country. You’re very sympathetic to that patient and their family,” Flynn says. “On the other side, you have a healthcare provider for whom it was an unintentional act. There are times when in the course of doing their work that human errors and system failures sort of come together to create this outcome.”
The worst risk from questionable criminal prosecutions is that it could undermine the progress made in recent years to encourage voluntary disclosure of mistakes, Flynn says. Taking such a tough stand on prosecuting errors could lead to more patient harm, not less.
“When you criminally charge providers, it not only creates fear and suppresses that voluntary incident reporting, but it also produces fear amongst the providers that they might lose their livelihood, as we saw in the Vaught case,” Flynn notes. “It sends a message that if you were to report an error, the consequences could be much more severe than what you had anticipated.”
At the same time, Flynn says, the publicity over criminal prosecutions may bring more attention to the need for organizations to examine their current practices, policies, and procedures, and to make improvements that can help nurses avoid these errors.
Prosecution of healthcare workers for criminal charges associated with clinical care errors instills fear in clinicians, says Elizabeth L.B. Greene, JD, partner with Mirick O’Connell in Worcester, MA. Reports of these charges and convictions deepens clinicians’ fears and erodes patients’ confidence in healthcare systems and providers.
“When clinical care is compromised by systemic problems, including understaffing, overworking, overly burdensome medication and medical record systems — which are often compounded by clinician burnout or depression, as is prevalent in medicine today — the risks of harm to clinicians and their patients is significant,” Greene says. “Such pressures appear to be most significant in complex, high-volume care settings, such as busy emergency departments, ICUs, and nursing homes.”
The volume and complexity of care, including the myriad medications, IVs, and fall risks, are common to these settings, where there often are too few providers who are overworked and burned out, Greene says. In these settings, the risk of multiple mistakes rises — and multiple mistakes often increase the risk and acuity of patient harm.
“Prosecutors seem to find grounds for criminal charges against providers who have made multiple mistakes in clinical care, allegedly resulting in significant patient harm. The risk of criminal charges will be reduced by addressing the systemic issues,” Greene says. “One way to address the risks created by these systemic issues is for healthcare system leaders to commit to the goal of transforming healthcare by prioritizing the well-being of healthcare workers. When healthcare systems address the well-being of their clinical workforce, and ferret out the common systemic problems, there will be a reduction in patient harm events, and in criminal prosecutions of clinicians for care-related issues.”
REFERENCES
- Freeman G. Nurse’s criminal conviction could chill safety investigations. Healthcare Risk Management. June 1, 2022.
- Swidha J. Home care nurse found guilty in 3-year-old child’s death. The Herald-Palladium. March 5, 2023.
- Ohio Attorney General. Two central Ohio caretakers sentenced for felonies. Feb. 28, 2023.
- Van Egeren J. Nurse charged with amputating patient’s foot without his consent or doctor’s authorization. USA Today. Nov. 10, 2022.
- Champion B. Michigan nurse charged with felony for working in home with suspended license. MLive. March 8, 2022.
SOURCES
- Andrew J. Barovick, JD, Barovick Law, White Plains, NY. Phone: (631) 754-6382. Email: [email protected].
- Jennifer Flynn, CPHRM, Risk Manager, Nurses Service Organization, Fort Washington, PA. Phone: (215) 773-4513. Email: [email protected].
- Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: [email protected].
- Kelli L. Sullivan, JD, Shareholder, Turner Padget, Columbia, SC. Phone: (803) 227-4321. Email: [email protected].
Criminal prosecutions of clinicians continue after a highly publicized case in 2022. Recent charges indicate nurses and other healthcare workers remain at risk. Rehabilitation centers and nursing homes often are the source of incidents that lead to criminal charges.
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