Medical Malpractice or Criminal Conduct?

Last week I wrote about an ICU doctor in Ohio, who was accused of deliberately overdosing 11 of his critically ill patients with a powerful painkiller and thereby shortening their lives.  After nearly a week of deliberations, the jury acquitted him on all charges.

Today I want to write about another criminal case involving a medical professional, but one which involved quite different legal issues.  In this case, a nurse in Tennessee was convicted of negligent homicide for giving a patient the wrong medication, which allegedly caused her death.  Unlike the case against the ICU doctor, there was no allegation that the nurse intended to cause any harm to the patient.  The only claim is that she was negligent.  She is awaiting sentencing but her case has sent huge shock waves throughout the medical profession.

Medical error—the third leading cause of death in the US | The BMJ

The illustration above is from 2013 but the leading causes of death in the United States have not changed much since then.  Preventable medical errors are the third leading cause of death, accounting for about 250,000 deaths each year.  These figures are courtesy of the federal government’s Centers for Disease Control.  Only a tiny fraction of these deaths caused by medical malpractice ever become the subject of a claim for compensation.  As evidenced by the furor over the arrest and conviction of this nurse, no one ever gets prosecuted for accidentally causing a patient’s death – until now.

The nurse in question was tasked with administering a sedative, Versed, to an elderly patient, who had suffered a brain injury and who was being prepared for a scan.  The Versed was to calm the patient so she would relax during the scan and not move around.  At the Vanderbilt University Medical Center, Versed was kept along with other highly-controlled drugs in a computerized medication dispenser.  The nurse went to the dispenser but, instead of Versed, she withdrew vecuronium, a powerful paralytic agent.  In order to withdraw the vecuronium, she had to override a number of safeties in the computerized dispenser.  Witnesses testified in the trial was that there were problems with the dispenser which required the nurses using it to routinely override its safety protocols.   The nurse administered the vecuronium to the patient and left the patient to await the scan.  When the transporter came to get the patient for the scan, she was brain dead.

The nurse was charged with two offenses.  The first was negligent homicide for administering the wrong medication.  The second was for gross neglect of a vulnerable adult for failing to monitor the effect of the medication on the patient.  The nurse admitted that she was distracted at the time of her mistake.

At least in part, our health care system relies on medical professionals to report mistakes, whether the mistake injures a patient or not.  Only by encouraging frank and honest reporting, can the system prevent future mistakes and learn from those that have already been made.  Despite its good intentions, the system already suffers from a culture of secrecy about medical errors.  Doctors and nurses who are afraid of being sued or of being the subject of medical or hospital discipline are already reluctant to report their own mistakes or those of other professionals.  Criminal prosecution of medical professionals is only going to make matters worse.

In addition to contributing to an even greater culture of secrecy and silence, criminal prosecutions are already causing some medical professionals to leave the profession altogether.  In their view, they do not get paid enough to run the risk of being charged with a crime, if someone is hurt on their watch or dies.  Even if they are able to successfully defend themselves in court, the legal fees alone may bankrupt them.

In my legal practice, I have seen far, far worse conduct than that for which this nurse was prosecuted.  I have seen impaired doctors injure their patients.  I have seen gross indifference to the well-being of the patient.  I have seen doctors and nurses blaming each other for careless mistakes.  What I have never seen, however, is someone prosecuted for the deaths or terrible injuries suffered by my clients, especially when, as here, the hospital had a major role in the injury.  It is already difficult to get a doctor to consent to a settlement in a medical malpractice case.  Fear of criminal prosecution will make settlement of meritorious cases even more difficult than it is today.  If anything could make an already bad system worse, adding the threat of criminal prosecution is probably it.

POST SCRIPT:  On May 13, 2022, the nurse was sentenced to three years probation.  If she satisfactorily completes her probation, her conviction will be expunged from her record.

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical malpractice cases, medical mistakes, Medical Negligence, Medication Errors, Nurses, Prescription Errors, Secrecy |