On March 25, 2022, a Tennessee jury found Nurse RaDonda Vaught guilty of “criminally negligent homicide” and “gross neglect of an impaired adult.” Nurse Vaught will be sentenced in May and may face a jail term of three to six years. This particular case has captured a great deal of attention. Many health care practitioners and health care associations, such as the American Nurses Association, have understandably expressed significant concern over this decision. In particular, these individuals and groups fear that criminally convicting a nurse in relation to a medication error will: (a) prevent “transparent, just and timely reporting of medical errors, which is crucial to maintain safe patient care environments;” and (b) will have a “long-lasting negative impact on the profession” of nursing, which is already short-staffed and strained due to the pandemic. Given these concerns, it is important to understand the particular facts of this case, the nature of the particular criminal charges, and whether the matter presents any learning opportunities for hospitals and health care providers.

The alleged facts in the case include the following:

  • Charlene Murphey, age 75, was admitted to the Neurological Intensive Care Unit at Vanderbilt University Medical Center, due to a brain bleed.
  • On or about December 26, 2017, the patient’s physician ordered a PET scan. Since the patient was known to be claustrophobic, her physician ordered Versed for her anxiety. Nurse Vaught sought to carry out this medication order.
  • Nurse Vaught was not able to locate Versed in the automated dispensing cabinet, as she was searching for the brand name and not the generic (midazolam). As a result, Nurse Vaught “overrode” the system and searched again for “VE.” She then pulled vecuronium, which is a paralytic.
  • The vecuronium carried a red warning label on the cap (“Warning– Paralyzing Agent”) and was in powder (and not liquid form). Nurse Vaught reconstituted the medication. She testified that she did not observe the name of the medication on the label and did not observe the warning.
  • Prior to administering the medication, Nurse Vaught did not scan the patient’s wristband. She also allegedly did not remain with the patient immediately following administration. The patient died approximately 20 minutes later.

Once she discovered the error, Nurse Vaught, by all accounts, promptly disclosed the error and participated in all levels of the related investigation. While Nurse Vaught made no excuse for the ultimate error, she did note (as did many others) that it was common during that period of time to override the medication cabinet (due to constant EMR and technical issues) and that she was unable to scan the patient’s wristband because there was not a scanner available in the area where the patient was located.

In addition to action taken by the Tennessee Board of Nursing, Nurse Vaught was ultimately convicted of “criminally negligent homicide” and “gross neglect of an impaired adult.” The charge of criminally negligent homicide required the state to prove, beyond a reasonable doubt, that the defendant engaged in “criminal negligence” that proximately caused a person’s death. “Criminal negligence” requires a “substantial and unjustifiable risk” and the risk must be of such a nature and degree that “the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the person’s standpoint.” Simple negligence, as defined in civil law (and as would be applied, for example, in a medical malpractice claim), is not sufficient for liability under the criminally negligent homicide standard. The charge of “gross neglect of an impaired adult” required the state to prove, beyond a reasonable doubt, that the defendant “knowingly, other than by accidental means, physically abuse or grossly neglect an impaired adult if the abuse or neglect results in serious mental or physical harm.”

Will This Case Adversely Impact Medical Error Reporting?

It certainly will not help – as it is easy to understand how fear of criminal prosecution could bear on decision-making. Medical errors are already under-reported. By some accounts, only 1 out of 6 medical errors are currently reported. Fear of job loss, litigation, etc., clearly play a role. Many suggest this case will only make matters worse. This does not, of course, alter the legal and ethical obligation to report unanticipated outcomes. Indiana’s hospital licensure rules require certain events, including but not limited to medication errors resulting in serious disability or death, to be reported to the Indiana Department of Health. Pertinent federal rules and accreditation standards also require reporting, including disclosure to the patient (or patient’s representative).

Will This Case Lead to a Significant Increase in Criminal Charges Against Health Care Providers?

Although we suspect likely not, we can certainly appreciate why a provider may have this concern. A few considerations that may (perhaps) alleviate some of this concern in Indiana include the following:

  • As an initial thought, the criminal charges in this case are unique to Tennessee. Indiana does not maintain the “lessor” criminal charge of “criminally negligent homicide.” Rather, Indiana maintains a higher standard of “reckless homicide standard.” Notably, Nurse Vaught was actually charged with reckless homicide. The jury in Tennessee refused to convict her at this level and instead convicted her of the lessor charge.
  • This particular case is not about a single medical error. Several mistakes were admittedly made in this case, involving a non-urgent medication, which then admittedly resulted in the patient’s death.
  • Many individuals have suggested this particular case, at least in part, was outcome driven (that there was “outcome bias”). In other words, they believe the particular patient outcome, bad publicity, hospital’s position, etc., contributed to increase the chance of prosecution.

What Else Should We Consider?

Even though many individuals are understandably troubled by this case, most agree that there are lessons to be learned. A few thoughts along these lines include:

  • Consider whether there are opportunities at your own organization to improve medication controls. Many health care professionals have noted that Nurse Vaught’s candor in this matter has resulted in operational improvements and improved patient safety. One source, for example, notes her hospital has moved paralytic drugs out of automated dispensing cabinets and into separate secured areas. Others have revised the search term parameters in relation to automated dispensing cabinets (increasing the number of letters required to search). Still others now prevent any overrides to these cabinets without more significant measures. Another measure is to ensure that scanners (to scan patient wristbands) are available anywhere non-urgent medications may be administered (and otherwise prohibit such administration of non-urgent medications if a scanner is not present). Consider whether such measures, and/or others, may facilitate process improvements in your own organization.
  • Understand and carefully consider your disclosure obligations. Relevant legal requirements and accreditation standards require the disclosure of certain medical errors (such as medication errors resulting in serious injury or death) to the Indiana Department of Health, the relevant Hospital/Medical Staff quality committee, and to the patient (or patient’s representative). While these disclosures certainly need to be made, and for good reason, the manner in which they are communicated is important. Several individuals have noted that comments made by Nurse Vaught (that did not need to be made) were ultimately used against her (such as stating “I killed the patient”). Indiana’s “Apology Statute” (at Indiana Code 34-43.5-1) protects certain “communications of sympathy” from being used against the declarant in court. However, this statute does not protect “admissions of fault.” Consider appropriate education and training of staff around these disclosures.
  • Once potential medical errors are disclosed or reported, it is critical to evaluate these concerns through the Hospital/Medical Staff’s appropriate “peer review process.” Indiana’s Peer Review Statute (at Indiana Code 34-30-15-1) provides robust confidentiality and privilege protections for communications to, determinations of, and proceedings of legitimate peer review committees. It is important to establish these peer review processes in a manner that will facilitate the work that needs to be performed, but that will also maximize peer review protections.