The Call to Decriminalize Medication Errors

By | 2022-06-24T08:19:37-04:00 June 22nd, 2022|0 Comments

A Tennessee jury recently 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, along with a second charge of gross neglect of an impaired adult. The verdict has already prompted a call to decriminalize medication errors by many in the healthcare industry.

Prosecutors initially charged Vaught with criminally negligent homicide, but the jury chose the lesser charges. The trial was closely watched in the medical community — and now some healthcare professionals fear it will have a chilling effect on patient safety investigations.

Investigations revealed Vaught injected the patient with the paralytic drug vecuronium instead of sedating drug Versed in December 2017. On May 13, Vaught was sentenced three years of probation.

Initially, the hospital did not disclose the patient’s death was related to a medical error when it reported the death to the county medical examiner. An anonymous whistleblower reported the fatal error in 2018, prompting an investigation by CMS.

After the CMS report, Vaught was indicted, arrested, and charged with criminal reckless homicide and impaired adult abuse. The hospital fired her, and the Tennessee Board of Nursing revoked her license after a hearing in which she testified she had been “complacent” and “distracted” during the incident.

Prosecutors alleged Vaught made 10 separate errors, including overlooking multiple warning signs. Court records claim that to use the medication, she would have had to look directly at a warning saying “Warning: Paralyzing agent.”

After the verdict, the American Nurses Association (ANA) and Tennessee Nurses Association (TNA) released a joint statement critical of the result, noting “the criminalization of medical errors is unnerving, and this verdict sets into motion a dangerous precedent. … We are deeply distressed by this verdict and the harmful ramifications of criminalizing the honest reporting of mistakes. This ruling will have a long-lasting negative impact on the profession.”

The Institute for Safe Medication Practices also criticized the verdict in a statement headlined Criminalization of Human Error and a Guilty Verdict: A Travesty of Justice that Threatens Patient Safety. Healthcare workers across the county are anxiously awaiting the impact this outcome will have on the healthcare industry, with the call to decriminalize medication errors.

Multiple Safety Measures Ignored

Prosecutors must have been motivated by the fact the nurse made a series of serious errors rather than one mistake that might be more easily understood, says Carol Michel, JD, partner with Weinberg Wheeler Hudgins Gunn & Dial in Atlanta.

“We don’t want to make criminals out of medical providers who are human beings, too,” she says. “They do make mistakes. Traditionally, that has been dealt with through the licensing boards and civil lawsuits. What sets this case apart is just the number of ways this nurse seemed to go around or defy the safeguards that were in place.”

The important lesson might be for hospitals to ensure proper dispensing safeguards and to properly train employees on critical safeguards and procedures that must not be overridden, or if overriding is necessary, the importance of exercising extreme caution.

According to the CMS report, Vaught could not find Versed on the list of medications in the dispensing cabinet, leading her to initiate an override setting so she could enter VE into a search field. She selected the first result, the neuromuscular blocker vecuronium, which normally would come with a red box warning on the screen noting the medication should be used only with a stat order. But because the override function had been engaged, the red box warning did not appear.

“The culture of the institution must be one that ensures safety procedures are followed and [emphasizes] why they are important. Part of her defense was that she wasn’t doing anything unusual with the override, that everybody does it,” Michel says. “That may or may not be true, but if the perception is that everyone is overriding these safeguards just to get their jobs done, you have a culture that says it’s OK to not follow the rules. That should worry a risk manager.”

Addressing System Failures and Medication Errors

The criminal charges were overkill after Vaught had experienced consequences professionally, says Andrew J. Barovick, JD, an attorney in White Plains, NY, who represents plaintiffs in medical malpractice suits but previously represented physicians and hospitals.

It would be better to focus on how the hospital and other institutions can improve the safe delivery of medications. “I could have more of an understanding of the decision to prosecute [Vaught] if there was evidence that she was truly reckless and not caring, but that’s not something I saw,” Barovick says. “You have to look at her actions in the context of systemic errors in hospitals, but that’s a harder question for people to talk about. You don’t get any sense of justice against an individual when you start talking about why the system allowed her to make this serious error.”

The healthcare system also has failed to address the related issues that led to Vaught’s stress and distraction in performing this task. Nurses are routinely overworked and tasked with too many simultaneous duties without the ability to focus when necessary. This is a leading factor in the call to decriminalize medication errors.

Fixing the systemic problems that affect patient safety is more important than seeking punishment for individuals who fail, even if they fail in obvious and tragic ways, Barovick says. Criminal prosecution is the easier path, but less effective in the long run.

“We have to do more than have criminal liability dangling over the heads of healthcare workers,” Barovick says. “It seems a particularly tone-deaf time to threaten criminal liability after they’ve just been devoting themselves to saving everyone from the pandemic for the past two and a half years, and putting their own lives at risk.”

Decriminalize Medication Errors for Safety Reporting

The worst outcome from the Vaught case could be a chilling effect on patient safety investigations, says Kelli L. Sullivan, JD, shareholder with Turner Padget in Columbia, SC. Vaught was remarkably open and honest about her actions when testifying to the nursing board and cooperating with the CMS investigation, but that information was used against her in the criminal prosecution.

“She did the right thing and fell on her sword, told the truth. The problem is those statements were admissible later in her trial,” Sullivan says. “Now, we have to worry about these statements in investigations and licensure hearings being used against them. The whole purpose of these investigations is to make sure the truth comes out, but when someone risks jail time by telling the truth, a lot of lawyers would counsel their clients to take the Fifth.”

Sullivan worries that such concerns by nurses and other clinicians could hamper a hospital’s internal investigations of adverse events, with employees worried whatever they say could be used against them if criminal charges result. Whether such information could be used by prosecutors is subject to many factors, but just the fear of that outcome could make people hesitant to speak freely.

“From a nurse’s and a hospital’s perspective, you’re darned if you do and darned if you don’t,” Sullivan says. “You don’t want people overriding safeguards without a thought, but you also don’t want them so paralyzed with fear that they won’t override a caution when necessary and the patient ends up having an event because it took an hour to get the medication.”

Risk managers should anticipate nurses and other clinicians knowing about the Vaught conviction and remaining wary of its implications, Sullivan says. It would be useful to educate them about the unique circumstances of the case, showing how Vaught’s error was more than just overriding the system. Other critical steps, such as reading the name of the medication she removed from the cabinet, were missed.

Time will tell how this case will impact the call to decriminalize medication errors in the future. Hospital risk managers are encouraged to ensure their hospital policies are up to date when investigating medical errors.

The most significant future risk of this case is the fear it creates in the medical community and the risk that review of the headlines alone will trigger a chilling effect on the reporting and appropriate investigation of medical errors. Risk managers should seek to understand the underlying facts in this case to determine the likelihood of a similar outcome in their state.

The full version of this article was published by Relias Media


Explore more about preventing medication errors through these courses:

Promoting a Culture of Safety to Prevent Medical Errors

(1.0 contact hours)

An organization promotes a culture of safety by focusing on how and why a problem occurred rather than on the person whose action or inaction caused the error. Experts refer to healthcare organizations that have a passion for patient safety as high-reliability organizations. In such organizations, being on the alert for how patients can be protected from harm is part of everyday work life. Although high-reliability organizations have few adverse events, they still continually explore risks and ways patient safety may be compromised. This module will offer suggestions for establishing and maintaining a culture of safety. It explains sentinel events and how to avoid them.

Medication Error Prevention

(1.0 contact hours)

Medication errors and substandard care occur often in today’s complex healthcare organizations. High-reliability organizations remain alert to potential errors and ways in which they can be prevented, regardless of how few adverse events occur. Healthcare organizations with a culture for patient safety focus on identifying the cause of errors and applicable prevention strategies rather than blaming or punishing the people involved in an error. Organizations that focus on patient safety in this manner have higher rates of error reporting and are better positioned to address problems at the systems level.

Preventing Medical Errors: Culture of Safety

(0.5 contact hours)

Medical errors and substandard care occur often in today’s complex healthcare organizations. Errors are usually due to multiple factors at the system-level rather than a single factor from an individual. Healthcare organizations that are committed to patient safety are high-reliability organizations. These organizations remain alert for ways to protect patients from harm even though they have few adverse events. This course will offer suggestions for reducing medical errors and maintaining a culture of safety.

 

 

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About the Author:

Greg Freeman
Greg Freeman has worked with Relias Media and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and also provides research and content for other Relias Media products. In addition to his work with Relias Media, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.

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