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Is a Medical Mistake an Error or a Crime?

Sofer, Dalia

AJN The American Journal of Nursing: May 2019 - Volume 119 - Issue 5 - p 12
doi: 10.1097/01.NAJ.0000557895.82994.81
In the News
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The case of a Tennessee nurse has rekindled an old debate.

Dalia Sofer

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In February, RaDonda Vaught, a nurse in Nashville, Tennessee, was indicted on charges of reckless homicide and impaired adult abuse in connection with a fatal error she committed in December 2017 while working at Vanderbilt University Medical Center.

According to a federal investigative report, Vaught mistakenly administered the neuromuscular blocker vecuronium instead of the prescribed sedative Versed to a patient who was experiencing anxiety before an imaging study. Vaught told the investigators that when the electronic prescribing cabinet failed to dispense Versed, she used a computerized override to obtain the drug, typing in the first two letters (“VE”) and choosing the first medication on the list—vecuronium. Not realizing her error, she administered the vecuronium and left the room. The patient was later found unconscious and not breathing and died the following day. Vaught was fired a few days later.

Everyone agrees that a tragic error occurred. But was it “reckless,” and was it a crime? According to the National Council of State Boards of Nursing (NCSBN), an error is considered “reckless” when a nurse consciously takes a “substantial or unjustifiable risk.” While such an error would call for disciplinary action, supervision, and remediation, it would not be referred for criminal investigation, which the NCSBN reserves only for incidents that are a result of deliberate harm.

“We need a lot more information to know if this was a ‘reckless’ workaround or a reflection of systemic errors,” says Edie Brous, a nurse attorney and contributing editor of AJN. “In either case, I don't believe a prosecutor has the requisite knowledge to understand what constitutes ‘recklessness’ in clinical practice. Practice breakdowns occur for many reasons and a just culture analysis requires a full root-cause analysis that looks at all contributing factors and distinguishes among human error, at-risk behavior, and reckless behavior.”

Alerted to the incident, the Centers for Medicare and Medicaid Services (CMS) sent an investigative team to Vanderbilt in October 2018. The team found multiple deficiencies associated with the patient's death, including the hospital's failure to inform state health officials. The CMS notified the hospital that if it did not file a satisfactory plan of correction, it would be dropped from the Medicare program. Vanderbilt complied, and the CMS withdrew its funding threat.

For Vaught, however, there has been no such resolution. Although the licensing division of the Tennessee Department of Health decided not to take disciplinary action, the criminal case continues. Brous contends that criminalizing the nurse is not the answer. “You have to examine the organizational failure that allowed the mistake to happen in the first place,” she says. She adds that such prosecutions could discourage error reports, which would undermine ongoing professional and institutional efforts to ensure patient safety.

The American Association of Nurse Attorneys concurs, writing in a position paper on unintentional human error that such cases typically “reflect system problems that need to be addressed,” and that “fear of criminal charges undermines” such efforts. Commenting specifically on Vaught's case, the American Nurses Association reiterated this point: “The criminalization of medical errors could have a chilling effect on reporting and process improvement. The Code of Ethics for Nurses states that while ensuring that nurses are held accountable for individual practice, errors should be corrected or remediated, and disciplinary action taken only if warranted.”

“Unfortunately,” says Brous, “when a mistake happens, people want a scapegoat. And the nurse is the low-hanging fruit.”—Dalia Sofer

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