Will Conviction of a Nurse Increase Medical Errors?

Right after Christmas in 2017, Vanderbilt University Medical Center nurse RaDonda Vaught made a series of medication errors that resulted in the death of 75 year old Charlene Murphey.  Vaught was fired by the hospital, lost her nursing license and last week, a jury found Vaught guilty of criminally negligent and guilty of abuse of an impaired adult. She could face up to eight years in prison.

7,000 to 9,000 patients die every year from medication errors. So is Vaught’s verdict a strong and necessary message to the nation’s five and a half million nurses that they need to be more careful?

Or is it a catastrophic blow to the nation’s need to reduce medical errors in our nation’s health care system?

The verdict on the verdict is in:

The American Nurses Association stated that:

the criminalization of medical errors could have a chilling effect on reporting and process improvement. The Code of Ethics for Nurses states that while ensuring that nurses are held accountable for individual practice, errors should be corrected or remediated, and disciplinary action taken only if warranted.

This will not only cause nurses and doctors to not report medication errors, it will cause nurses to leave the profession.” — Bruce Lambert, director of the Center for Communication and Health at Northwestern University

Dana S. Kellis, M.D., Ph.D., a recently retired chief medical officer for BayCare Health System in Florida, argued that

by adding the risk of criminal prosecution for unintentional errors to nurses’ risks of personal injury from violent patients, falls, and strains as well as of infecting themselves and their families from viruses or other serious infections present in the hospital, the district attorney, Board of Health and Board of Nursing make nursing, already one of the most dangerous professions in our country, even more fraught with risk.

And patient safety expert Bruce Lambert, director of the Center for Communication and Health at Northwestern University, stated that it was extremely concerning that Vaught was being criminally prosecuted for a medical error. “This will not only cause nurses and doctors to not report medication errors, it will cause nurses to leave the profession.”

So what’s the real story? This is a long post, but it’s a complicated issue. Bear with me.

The Facts

Vanderbilt University Medical Center nurse RaDonda Vaught was still relatively new to nursing in December 2017.  After she was licensed, Vaught was hired by Vanderbilt University Hospital in October 2015. Her goal was “to take care of people the way I would want my grandmother to be taken care of.”

Shortly after Christmas in 2017, Charlene Murphey needed an imaging study, but because she needed to lie still during the scan and was somewhat claustrophobic, doctors prescribed a sedative, Versed, to calm her claustrophobia. Vaught accidently pulled vercuronium, a paralyzing agent, from the cabinet and injected Murphey with the drug. Vercuronium is only used during intubation when a patient needs to be medically paralyzed.

Soon after the drug was administered, Vaught realized her mistake, and reported it, following hospital rules. Unfortunately, Murphy suffered cardiac arrest and partial brain death. She died Dec. 27, 2017. In addition to choosing the wrong medicine, Vaught was accused of failing to read the name of the drug, overlooking a red warning label on the top of the medication, and failure to monitor the patient for an adverse reaction.

Skipping to the present, Vaught’s nursing license was revoked and she was charged with reckless homicide and abuse of an impaired adult. Last week a jury found Vaught not guilty of reckless homicide, but guilty of a lesser charge, criminal negligence, and guilty of abuse of an impaired adult.

The Aftermath: Blame Seeking and Cover-up

In order to learn from medical errors, hospitals generally encourage nurses and other health care workers to report their errors, without fear of retaliation. This is called “Just Culture, which is detailed more thoroughly below.) Vaught followed those rules and when she discovered she had made a mistake, she immediately reported the error.

Vanderbilt University Medical Center (VUMC) was not quite so honest or forthcoming. Shortly after Murphey’s death, the hospital fired Vaught for not following the “five rights” of medication administration. (Right patient, right medication, right dose, right time and right route of administration.) VUMC also quickly reached a confidential settlement with Murphey’s family, requiring them to not speak about the error publicly. (Murphey’s family later said that the hospital had failed to disclose to the family what actually happened.)

Then the cover-up started. VUMC failed to report the incident to the Tennessee Department of Health within seven (7) days as required by Tennessee law. Nor did VUMC report to the federal Centers for Medicare & Medicaid Services (CMS), also required by law.  The hospital also did not report the incident to the Joint Commission, a hospital accrediting body, although Joint Commission reports are not mandatory.

In addition, Vanderbilt lied to the medical examiner, saying that Murphey died of “natural” causes, preventing an investigation and autopsy which could have confirmed whether the administration of vercuronium was the sole cause of Murphey’s death. VUMC has never disclosed why they kept the incident a secret.

After firing her, VUMC filed a complaint against Vaught with the the Tennessee Department of Health, which houses the state’s Board of Nursing. But the Nursing Board investigated the episode and in October 2018, found that Vaught’s case “did not constitute a violation of the statutes and/or rules governing the profession” and decided not to pursue disciplinary action.

That might have been the end of the story, except that on October 3, 2018, an anonymous tipster came forward to alert state and federal health officials to the medical error. As a result of that report, the Center for Medicare & Medicaid Services (CMS) launched a surprise investigation of the hospital late in 2018.  The CMS report confirmed that Murphey died from an accidental dose of vecuronium and that Vanderbilt did not report the medication error to the government or the medical examiner.

“The failure of the hospital to mitigate risks associated with medication errors and ensure all patients’ received care in a safe setting to protect their physical and emotional health and safety placed all patients in a SERIOUS and IMMEDIATE THREAT and placed them in IMMEDIATE JEOPARDY and risk of serious injuries and/or death.” — Center for Medicare & Medicaid Services

CMS also found that “The failure of the hospital to mitigate risks associated with medication errors and ensure all patients’ received care in a safe setting to protect their physical and emotional health and safety placed all patients in a SERIOUS and IMMEDIATE THREAT and placed them in IMMEDIATE JEOPARDY and risk of serious injuries and/or death.” Based on the findings, CMS threatened to suspend Vanderbilt’s Medicare payments, which would have crippled the hospital’s revenue, unless Vanderbilt could prove it had taken steps to prevent a similar error. Vanderbilt quickly developed a “plan of correction” that satisfied CMS. Vanderbilt received no punishment for the fatal drug error.

On February 1, 2019, a Nashville Grand Jury indicted Vaught, charging her with criminal reckless homicide and impaired adult abuse. In September 2019, the Tennessee Department of Health, which had cleared Vaught less than a year before, reversed its prior decision not to pursue professional discipline against Vaught, and charged her with unprofessional conduct, abandoning or neglecting a patient that required care and failing to maintain an accurate patient record. They refused to explain why they reversed their previous position. Her nursing board hearing and the criminal trial was delayed because of COVID, but in July 2021, the Tennessee Board of Nursing revoked Vaught’s nursing license, fined her $3,000, and stipulated that she pay up to $60,000 in prosecution costs.

Finally, last week, a jury found Vaught guilty of criminally negligent homicide and abuse of an impaired adult.

Who or What Was Really at Fault?

But the case was not a clear as it seemed,  Despite the actions taken against Vaught, CMS report, the Nursing Board and the criminal trial all identified significant system-wide failures in VUMC’s drug acquisition systems, confirming that the case was not as simple as it seems. A Tennessee Bureau of Investigation official testified that at a meeting with the Department of Health and prosecutors shortly before criminal charges were filed, it became clear the Department of Health had determined that “Vanderbilt Medical Center carried a heavy burden of responsibility in this matter,” but “there was no discipline because, according to [a Department of Health lawyer], a malpractice error has to be gross negligence before they can discipline for it.”

This is how the process is supposed to work: Nurses are required to ensure that they are administering the right dose of the right medication to the right patients. Because every human makes mistakes, hospitals have systems that are intended to minimize or eliminate those errors. Normally, a doctor orders a specific medication for the patient through the electronic health record system that is then sent electronically to the hospital’s pharmacy, which then verifies the order and authorizes the medicine to be removed from the hospital’s computerized drug dispensing cabinet.

If everything is working properly, that process happens fairly quickly and safely. Nurses punch in the patient’s information and the medication dispenser permits access to the prescribed medication.  But if the system is malfunctioning, or in emergency cases where the doctor-to-pharmacy-to-drug-dispensing-cabinet process moves too slowly, nurses have the ability to override the system.

Then, before actually administering the medication, the nurse is supposed to scan the patient’s ID bracelet and then the medication. The system alerts the nurse if he or she has the wrong medication, the wrong dose or the wrong patient.

What could go wrong?

First, at the time of the event, Vanderbilt’s drug acquisition system was malfunctioning, significantly delaying the ability of nurses to acquire medications.

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.

Vaught said Vanderbilt instructed nurses to use overrides to circumvent delays and get medicine as needed and stated that “Overriding was something we did as a part of our practice every day. You couldn’t get a bag of fluids for a patient without using an override function.” In fact, during her stay in the hospital, Murphey had received 20 different medications obtained by various nurses via override of the automated dispensing cabinet during her hospitalization.

Vaught typed in “VE,” into the medication dispenser computer, the first two letters of “VErsed.” But the first drug to come up was “VEcuronium,” which she mistakenly chose. Also about this time, Vaught was distracted by questions from a trainee.

In addition, in 2017, there was no scanner in the imaging area for Vaught to scan the medication against the patient’s ID bracelet.

Vaught was also accused of not monitoring the patient after administration of the drug. But she testified that her supervisor told her that monitoring was not required, and hospital policy did not require monitoring after Versed administration. CMS found that VMUC “did not have any procedure or guidance regarding the manner and frequency of monitoring during and after medications were administered.”

Vaught also overlooked the label which read “Warning—Paralyzing Agent,” but experts pointed out that that warning had been previously overlooked or misunderstood with other neuromuscular blocking agent errors. Since this error, drug warnings on paralyzing agents have become much more prominent.

Finally, although Vaught immediately reported her error when it was discovered and filled out an event report, she was accused of failure to document the mistaken vecuronium administration. It turns out, however, that her supervisor told her not to document the error because it would be picked up automatically by the electronic medication administration record system.

Blame the Worker

One might still ask why the nurse who made a mistake leading to the death of a patient shouldn’t be punished. Wouldn’t that be a warning to other nurses to “be more careful.”  The Assistant District Attorney claimed that Vaught deserved to be convicted even though she “probably did not intend to kill Miss Murphey, but she made a knowing choice.”

“Probably” did not intend to kill Murphey? A “knowing choice?”

Not quite.

Blaming the worker is a common strategy when management is attempting to prevent a deeper analysis into possible failures in their safety systems. I’ve written many times before, (see here and here), that while managers almost always blame workers for catastrophes, they are almost always wrong.

While managers almost always blame workers for catastrophes, they are almost always wrong.

So, let’s take a closer look at the concept of “blame the worker.”

Because humans make mistakes and modern industries (aircraft, chemical refineries, medicine) are so complex, safety systems are developed to eliminate or reduce the likelihood and impact of errors that may lead to disasters. When those safety systems fail, disasters are more likely.  These management safety system failures are generally rooted in poor design, mechanical failures, gaps in supervision, undetected manufacturing defects or maintenance failures, unworkable procedures, shortfalls in training, less than adequate tools and equipment. They are not unique to the refineries and industrial disasters that Hopkins writes about. Similar problems have been identified in the operation of aircraft, nuclear plants and…medical facilities.

In a hospital context, these “latent” problems with the institution’s safety systems include factors like a faulty electronic records system, lack of a scanner in the radiology department, and a failure to establish policies regarding monitoring sedated patients.

But making the effort to identify root causes, latent problems and safety system faults is more difficult and threatens to focus responsibility on safety systems to the point where managers may need to take responsibility for the inevitable incidents. And the bigger the disaster, the greater the temptation to find an easy and convenient scapegoat. And that scapegoat is usually the worker who initiated the event.

Andrew Hopkins is a well-known safety culture expert who has analyzed the causes of numerous industrial disasters where workers were initially blamed.  Hopkins explains that

human beings inevitably make errors and errors by operators must be expected. Thus, rather than focusing on the operators who make the errors, modern accident analysis looks for the conditions which make the errors possible. It is nearly always the case that there was a whole series of contributory factors which created an operator error and set up the situation which made the error critical. Accident analyses which aim to prevent a recurrence seek to identify these factors. From this perspective, errors are seen as consequence rather than principal causes.

“Once we understand why the operators did what they did, it no longer seems appropriate to blame them, and punishment seems like little more than scapegoating.” — Andrew Hopkins

In other words, establishing that a worker performed an act that led to a disaster should be the beginning, not the end of an accident investigation. Investigators need to ask “why” the worker acted that way. For example, why did Vaught override the system? And when you get that answer, ask “why” again, and then keep asking “why” until you get to the root causes.

Because if the focus is on “blaming” a worker for a mistake, instead of asking “why” that mistake was made, then the real causes of the incident will never be identified, never addressed and the same thing will eventually happen again. You can fire (or even jail) the worker for making a mistake, but if the underlying causes aren’t addressed, the next worker is likely to make a similar mistake. Maybe not today. Maybe not tomorrow. But soon, and with serious implications for patients and other medical workers.

This puts the indictment of Vaught in a different perspective.  As Hopkins writes, “once we understand why the operators did what they did, it no longer seems appropriate to blame them, and punishment seems like little more than scapegoating.”

And according to Vaught, that’s exactly what is happening:

She feels the hospital system not only should have acted before that December day to fix the problems, but also waited unconscionably long after the event to implement the changes later recommended by a federal body reviewing the case.

But now, she said, someone still has to pay the price.

“A complaint doesn’t wind up in the hands of a criminal investigating body and just end with being swept under the rug,” she said. “Someone has to pay a price and it was really easy for them to say, ‘well, let’s just let her do it.'”

Just Culture

Because most medical errors do not have consequences and therefor go unnoticed, hospital safety experts recognize that only by reporting all errors can system errors be identified and corrected. And they also understand that blaming workers for mistakes and punishing them will discourage reporting (and analysis) of errors, health care systems across the country have adopted the concept of “Just Culture.”

“Just Culture” in health care has been defined as an environment where organizations are accountable for systems they design and analysis of the incident—not the individual. Just Culture recognizes that errors are usually a result of a sequence of events, not due to the action of an individual employee. Key to the concept of Just Culture is providing a safe haven that supports reporting of mistakes without retaliation against the employee who made the error.

As the Institute for Safe Medication Practices (ISMP) states,  “Since human errors are inevitable, they are best managed within a Just Culture through system redesign to make the system human error-proof or error-resistant.”

Just Culture recognizes that errors are usually a result of a sequence of events, not due to the action of an individual employee.

And key to establishing a Just Culture is the ability to differentiate between normal “human error,” “at-risk behavior,” and “reckless behavior”  (where the employee fully understands the risk, and chooses to disregard it anyway.)

“At-risk behavior” is the most challenging for an institution to address, because “most at-risk behaviors are precipitated by large and small system failures that individuals must work around, often daily, to get the job done.” And when workers succeed in figuring out way to overcome the system failures, they’re generally rewarded and admired, rather than punished.

The ISMP has studied the Department of Health’s case against Vaught case and determined that the Board failed to differentiate between human error, at risk behavior and reckless behavior.

ISMP argues that all of Vaught’s errors should have been categorized as human error or possibly at-risk behaviors.  And discipline, loss of license or imprisonment are the wrong solutions for human error or at-risk behavior.

While it has traditionally been easier to harshly judge these behavioral choices, incorrectly label them as reckless conduct, and inappropriately discipline all who knowingly violate the rules, in a Just Culture, the solution is not to punish those who engage in at-risk behaviors. Instead, managing at-risk behaviors requires removing the barriers to safe behavioral choices, removing the rewards for at-risk behaviors, and coaching individuals to see the risk associated with their choices.

Reporting and Learning Culture

The key to Just Culture is encouraging workers to report mistakes, learning the lessons of those mistakes and applying those lessons to prevent future errors. As a Chemical Safety Board report on the 2005 Texas City Refinery disaster explained:

An informed culture must first be a reporting culture where personnel are willing to inform managers about errors, incidents, near-misses, and other safety concerns. The key issue is not if the organization has established a reporting mechanism, but rather if the safety information is actually reported. Reporting errors and near-misses requires an atmosphere of trust, where personnel are encouraged to come forward and organizations promptly respond in a meaningful way. This atmosphere of trust requires a “just culture” where those who report are protected and punishment is reserved for reckless non-compliance or other egregious behavior.

And only if there is reporting, and the organization learn from those mistakes. The CSB explains that, “a learning culture ensures that reports of incidents and safety information are analyzed and lessons learned effectively communicated, and that prompt corrective action is taken.”  Good managers should want to learn from those reported mistakes before an error leads to a tragedy: an airplane crash, a rail disaster, a refinery explosion or a patient death.

Outcome Bias

If Vanderbilt was operating under the Just Culture system, why did the hospital fire Vaught, even though she reported her error? Why was her nursing license revoked and why was she prosecuted?

The ISMP argues it was a phenomenon called “outcome bias.”  In most cases, medical errors do not result in harm to patients. The only difference here was that the patient died. Writing during the Nursing Board’s hearing on revoking Vaught’s license, ISMP argues that:

It seemed the Board was holding a disciplinary hearing primarily because the patient had died, so there was a significant outcome bias. In fact, the Board has not filed disciplinary action against all TN nurses who have not read a medication label carefully, obtained a nonurgent medication from an ADC via override, drawn an incorrect conclusion, failed to monitor a sedated patient, or failed to document a medication error in the patient’s record

Bad for Medical Workers and Bad for Patients

So what we have here is a criminal conviction of a nurse who made an error that resulted in a fatality, while the hospital that covered up the case, lied about the patient’s death and “carried a heavy burden of responsibility in this matter” remains unpunished.

This verdict is likely to have serious implications for the quality of health care in this country. Vaught freely admitted her error and her guilt in causing Murphey’s death.  Yet “Vaught said she is concerned that the verdict with cause other providers “to be wary about coming forward to tell the truth. I don’t think the take-away from this is not to be honest and truthful.”

I have close family members who are nurses and they and their co-workers are alarmed by this verdict.  They are human.  Systems are not perfect.  There are unexpected emergencies. As a result of COVID, staffing conditions have gotten worse, and health care workers are over-worked and fatigued. And sometimes they make mistakes.

Nurses are vowing to never report an error again, and never to override the medication system again, even if the patient’s life is at risk.

But, at least until now, nurses dutifully report those errors, knowing that those reports will be used to identify and correct system failures and ultimately to improve the practice of medicine and the safety of patients. And at least until now, they have been assured that they will not be punished for reporting. But as the CSB report warns, “while an atmosphere conducive to reporting can be challenging to establish, it is easy to destroy.”

And we’re already seeing the damage. Nurses are vowing to never report an error again, and never to override the medication system again, even if the patient’s life is at risk. Others are just quitting the profession.

People unfamiliar with hospitals fail to understand physically, mentally and emotionally exhausting conditions nurses work under and the huge responsibility they carry.  Nurses are with patients all day and all night, and literally keep patients alive between the occasional visits of doctors. They do this under enormous pressure, understaffing and numerous threats to their safety. And for all that, they are underpaid,  under-appreciated and hospital spend huge sums of money opposing organizing efforts to improve their working conditions.

And now this.

The severe COVID-related nurse staffing shortages and burnout are only likely to make working conditions for nurses even worse, and medical mistakes more common. There couldn’t be a worse time to discourage nurses from reporting errors.

As Dana Kellis warns:

by resorting to the use of the fear of prosecution as a tool to intimidate nurses already beleaguered with the burdens of inadequate staffing, violent patients, assimilating new and confusing technology, dealing with difficult patients and physicians and others, the district attorney, Board of Health and Board of Nursing divert these caregivers’ attention even further from their tasks, forcing them instead to focus on their own risk for criminal liability.

The severe COVID-related nurse staffing shortages and burnout are only likely to make working conditions for nurses even worse, and medical mistakes more common. There couldn’t be a worse time to discourage nurses from reporting errors.

Bottom line: Vaught’s conviction will likely lead to more medical errors and more preventable deaths.  None of this can be good for the nursing profession or for the safety of patient care in this country.