While nurses deserve patients’ gratitude and the highest praise for the valiant care they have provided during the coronavirus pandemic, a Nashville case has raised tough questions as to whether and when professional caregivers’ medical errors ought to be criminalized.

Prosecutors decided that some mistakes rise to the criminal level, after considering the evidence against RaDonda Vaught, a former nurse involved in a 2017 fatal drug error.

Vaught, who already has been stripped of her nursing license, has been convicted, NPR reported, of “gross neglect of an impaired adult and negligent homicide after a three-day trial … She faces three to six years in prison for neglect and one to two years for negligent homicide as a defendant with no prior convictions, according to sentencing guidelines provided by the Nashville district attorney’s office. Vaught is scheduled to be sentenced May 13, and her sentences are likely to run concurrently, said the district attorney’s spokesperson, Steve Hayslip.”

During her trial, authorities showed that Vaught, 37, “injected the paralyzing drug vecuronium into 75-year-old Charlene Murphey instead of the sedative Versed on Dec. 26, 2017,” the Associated Press reported. “Vaught freely admitted to making several errors with the medication that day, but her defense attorney argued the nurse was not acting outside of the norm and systemic problems at Vanderbilt University Medical Center were at least partly to blame for the error.”

Here is more detail from the news agency as to why prosecutors considered Vaught’s conduct so grievous:

“Murphey had been admitted to the neurological intensive care unit on Dec. 24, 2017, after suffering from a brain bleed. Two days later, doctors trying to determine the cause of the bleed ordered a PET scan to check for cancer. Murphey was claustrophobic and was prescribed Versed for her anxiety, according to testimony. When Vaught could not find Versed in an automatic drug dispensing cabinet, she used an override and accidentally grabbed vecuronium instead.

“An expert witness for the state argued that Vaught violated the standard of care expected of nurses. In addition to grabbing the wrong medicine, she failed to read the name of the drug, did not notice a red warning on the top of the medication, and did not stay with the patient to check for an adverse reaction, said nurse legal consultant Donna Jones. Leanna Craft, a nurse educator at the neuro-ICU unit where Vaught worked, testified that it was common for nurses at that time to override the system in order to get drugs. The hospital had recently updated an electronic records system, which led to delays in retrieving medications from the automatic drug dispensing cabinets. There was also no scanner in the imaging area for Vaught to scan the medication against the patient’s ID bracelet.”

Vaught, NPR reported, also failed to distinguish that Versed, the prescribed tranquilizer, is a liquid, while the fatal vecuronium is a powder. The onetime nurse admitted her error and repeatedly has apologized and expressed remorse for its consequences.

While absolutely not excusing her actions, nursing and other health care groups have expressed concern about Vaught’s prosecution, arguing that errors occur in medicine and health staff must be able to discuss these in appropriate ways, so problems can be addressed. Bruce Lambert, a patient safety advocate, a Ph. D., and a Northwestern University professor, told the AP this in an interview before Vaught’s conviction:

“This [case] will not only cause nurses and doctors to not report medication errors, it also will cause nurses to leave the profession.”

NPR reported this:

“The American Nurses Association issued a statement … while the trial was ongoing, saying that nurses believe this case sets ‘a dangerous precedent … Transparent, just, and timely reporting mechanisms of medical errors without the fear of criminalization preserve safe patient care environments.’”

NPR also reported this after the verdict was handed down, quoting Janie Harvey Garner, founder of Show Me Your Stethoscope, a nursing group on Facebook with more than 600,000 members:

“Health care just changed forever. You can no longer trust people to tell the truth because they will be incriminating themselves.”

To be sure, as NPR reported,  “Medical errors are generally handled by professional licensing boards or civil courts, and criminal prosecutions like Vaught’s case are exceedingly rare.”

Correct. In my practice, I see the harms that patients suffer while seeking medical services.  The Vaught prosecution and the situation it addressed may have been so fraught that it may not be the precedent-setting crime that health care professionals fear. Prosecutors have been justifiably wary about pursuing criminal cases against medical personnel when they commit errors.

But this case is a grim reminder that medical errors abound and a return to pre-pandemic vigilance about patient safety is a must.

Just a reminder that before the world battled its worst infectious disease outbreak in a century, researchers found that medical errors claimed the lives of roughly 685 Americans per day —more people than died of respiratory disease, accidents, stroke and Alzheimer’s. That estimate came from a team of researchers led by a professor of surgery at Johns Hopkins. It meant medical errors ranked, before the coronavirus times, as the third leading cause of death in the U.S., behind only heart disease and cancer

Now, as Becker’s Hospital Review, an industry news outlet, reported as part of its coverage of this case:

“Health care workers are burned out and exhausted from juggling pandemic-related stressors and additional burdens linked to workforce shortages for more than two years. These issues pose serious consequences for employees and patients, as numerous studies link clinician burnout and stress to an increased likelihood of medical errors. The full picture of how COVID-19 has affected patient safety is still unclear, but emerging data on health care-associated infections and other forms of patient harm suggest significant lapses have occurred amid the pandemic.

“The number of serious patient safety incidents reported to The Joint Commission jumped in 2021, reaching the highest annual level seen since the accrediting body started publicly reporting them in 2007. The organization received 1,197 reports of sentinel events last year [incidents that result in death, permanent harm, or severe temporary harm], up from 809 in 2020. The most commonly reported safety event was patient falls, followed by delay in treatment and unintended retention of a foreign object.”

Not good. By the way, to underscore a point made by experts in discussing the convicted nurse’s case, medical malpractice lawsuits have, indeed, served as a major way for patients with claims of harms to not only obtain the significant financial redress they may need for long periods of recovery and rehabilitation but also justice for unspeakable wrongs done to them. For many of these brave individuals, this also means getting doctors, hospitals, and other medical providers and institutions, finally, to fix systemic problems that injure and kill patients.

In the Tennessee case, the independent Kaiser Health News service deserves credit for delving into the choices that prosecutors and regulators made when considering not only onetime nurse Vaught’s actions but also those of Vanderbilt University Medical Center. State investigators, as KHN reported, had found the powerful institution had a “heavy burden of responsibility” in the fatal drugging of a patient. The hospital, critics say, was not held accountable for failing, as required by law, to report the incident and contending the patient died of “natural causes.”

The hospital, KHN said, also “negotiated an out-of-court settlement with [the patient’s] family that barred them from publicly discussing the death.”

My firm and I have been outspoken in opposing provisions in settlements to keep them from disclosure and public view. We work hard to avoid having them imposed on our clients by defendants who want to hide their wrongdoing.

We have much work to do to protect patients from medical errors and other preventable harms and to ensure that they receive appropriate redress in criminal and civil courts if victimized by medical error.