Malpractice does not equal murder

Bricker & Eckler LLP

Bricker & Eckler LLP

There have been two recent attempts to pursue criminal charges against medical providers that garnered national publicity. The question is whether these two cases are outliers or a sign of things to come. Only time will give us a reliable answer, but it is noteworthy that despite media and prosecutor efforts, the judicial system essentially rejected both of these efforts.

There is a tremendous amount of pressure facing medical providers these days as they risk their lives during a pandemic while much of the rest of the world works from home.  At the same time, the health care industry is facing staffing shortages that are at historically high levels. The threat of facing a medical negligence lawsuit has always loomed on the horizon, but there have recently been instances where providers have also faced criminal charges. Is this a new trend? We don’t think so.

Criminal charges against healthcare providers are rare

There are an average of 20,000 medical negligence actions filed each year.  However, it is rare to see any associated criminal charges filed. When there are criminal charges pursued, they are rarely based upon the medical care that was provided. Instead, they usually relate to such things as fraud and sexual assault. Unfortunately, as we have seen recently, the few that do involve criminal charges seem to get a lot of publicity in the media, much of it placing the provider in a negative light.

Recent failed attempts to criminalize medical negligence

One case that received a lot of attention in the media related to criminal charges brought against William Husel, M.D. by the State of Ohio. He was facing 14 counts of murder based upon medications that he ordered for patients who were all terminally ill.  After a several week trial, he was acquitted on all charges

Another case involved RaDonda Vaught, RN who faced criminal charges in Tennessee. She administered Vecuronium, which is a paralytic, instead of Versed, an anti-anxiety medication, to a patient undergoing testing following a brain injury. In her case, Ms. Vaught typed in the first two letters of the correct medication into the computer system and did not catch the error when the computer prompted the wrong medication. The patient was subsequently found to have a brain injury, but it was disputed whether this was due to the medication error or her underlying brain injury. Ms. Vaught had been reviewed by the Department of Health initially with a determination to take no action, but it subsequently revoked her license. She was ultimately convicted of criminally negligent homicide and gross neglect of an impaired adult, but she was sentenced to 3 years of probation with the opportunity to have the charges drop and her records expunged after she completed her probation.

It was not disputed that Ms. Vaught gave the wrong medication to a patient and it was alleged that Dr. Husel ordered too much medication for his patients. Both strongly denied any intent to harm their patients. The Civil Justice system is available to compensate patients where providers are negligent and the medical/nursing boards are available to evaluate the competence of their licensees. Escalating these matters to a criminal level is simply unnecessary. For the sake of the medical providers in this country and the populations that they serve, we hope that these are isolated incidents.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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