The case has rocked the medical profession. On March 25, 2022, a Tennessee jury found a former Vanderbilt University Medical Center nurse guilty of criminally negligent homicide and negligent abuse of an impaired adult. Nurses, medical professionals, and healthcare organizations decried the prosecution and conviction as one that sets a dangerous precedent. Groups such as the American Nurses Association and the American Hospital Association immediately expressed their concerns that the verdict will have long-lasting negative impacts on the nursing profession and patient safety.
Regardless of whether you followed the case or just heard about the verdict, if you’re a nurse or a healthcare worker, you probably are wondering, “What does this mean for me?” and “What can I do to protect myself?”
As a lawyer, I cannot answer everything. I can tell you, however, that a criminal prosecution is very rare for nursing and medical errors as prosecutors make their own decisions when choosing the cases they decide to pursue. I also can explain what made the RaDonda Vaught case very different. While I am hopeful that this article will set your mind at ease, you should be mindful that it is important to protect yourself and your career—and not just legally. You have very important jobs, and your patients rely on you. You should check in with yourself, assess your stress level, and practice on-the-job mindfulness. I’ve included below some links to resources that may help with this.
Some vocabulary will be helpful for the rest of this article:
- Medical malpractice: Any act or omission by a medical provider during the treatment of a patient that deviates from the accepted standards of practice in the medical community and that causes an injury to the patient.
- Negligence: The failure to use reasonable care, resulting in damage or injury to another person or property. Negligence is ordinarily (but not always) the basis for a medical malpractice claim.
- Gross negligence: This can be understood as very great negligence and has been described as a failure to exercise even the care that a careless person would use.
- Recklessness: It goes further than negligence and gross negligence. It has a greater degree of fault than negligence and gross negligence, but a lesser degree than intentional wrongdoing. In the context of medical malpractice, providers are reckless if they can foresee the possibility of harm from their actions and consciously take the risk to act anyway.
- Criminal negligence: This is gross negligence that is so extreme that for public policy reasons it is punishable as a crime.
The Background of Nurse RaDonda Vaught’s Case
The Medication Error
In December 2017, a 75-year-old patient with a subdural hematoma (or “brain bleed”) was feeling anxious while waiting for a PET scan. In response, the primary nurse obtained a physician’s order for 1mg Versed to help with the patient’s anxiety. She then asked Nurse Vaught to administer the medication.
When Vaught went to remove the Versed from the medication cabinet, it did not come up when she typed “VE.” She then used the cabinet’s override function to access all the medications in the cabinet. According to testimony at trial, this was a common practice at Vanderbilt at the time due to issues related to the cabinet and the electronic medical record. Vaught’s testimony at the Tennessee Board of Nursing hearing went so far as to state that a nurse could not get a bag of fluids for a patient without using an override.
The cabinet unlocked, Vaught again searched “VE.” She selected the first of several medications, which she thought was Versed. It wasn’t – it was vecuronium bromide. Unlike Versed, which is used to reduce anxiety, vecuronium acts as a paralytic. Vaught prepared and administered the vecuronium to the patient and then left the patient alone.
Approximately 30 minutes later, radiology staff found the patient unresponsive and started CPR. She was resuscitated and returned to the neuro ICU. Ultimately, she suffered an anoxic brain injury and died.
While the patient was in the ICU, Vaught recognized her error and told the physicians and her supervisor that she had administered the incorrect medication.
Vanderbilt University Medical Center
Less than a week after her error, Vanderbilt terminated Vaught, stating that she did not validate the five rights of medication administration, which was part of her responsibility and within the scope of her practice as a registered nurse. This is not surprising. Nurses (and any employee) may be terminated for making errors that put patients’ lives at risk.
Vanderbilt also reached a confidential settlement with the patient’s family.
In addition, Vanderbilt took several actions that resulted in Vaught’s error not being disclosed to the government, the medical examiner’s office, or the public.
Tennessee Board of Nursing
Initially, the Tennessee Department of Health (the entity that oversees the Board of Nursing) decided not to pursue a disciplinary action against Vaught. On October 23, 2018, the director of the Office of Investigations wrote to Vanderbilt and Vaught to tell them that Vaught’s actions “did not constitute a violation of the statutes and/or rules governing the profession” and that the matter “did not merit further action.” This would change as the actual events were made known to the Department.
In late October 2018, the Centers of Medicare and Medicaid Services (CMS) conducted a surprise inspection at Vanderbilt after receiving an anonymous tip about the patient’s death and Vanderbilt’s failure to disclose the circumstances of that death. The inspection confirmed that the patient died from Vaught’s incorrect administration of vecuronium and that Vanderbilt failed to report this fact. CMS threatened to suspend Medicare payments if Vanderbilt could not prove that it had taken steps to prevent a similar error. Vanderbilt quickly provided its corrective plan.
In late September 2019, Tennessee’s Department of Health filed charges against Nurse Vaught before the Tennessee Board of Nursing. The Department charged her with (1) unprofessional conduct, (2) abandoning or neglecting a patient who required care, and (3) failing to maintain an accurate patient record because she did not document her error. After her disciplinary hearing (in July 2021), the Board of Nursing revoked Vaught’s nursing license. The board’s vice chairwoman was sympathetic to Nurse Vaught but commented that mistakes have consequences.
After the Tennessee Department of Health learned the actual circumstances of the patient’s death, it alerted the Tennessee Bureau of Investigation, which began a criminal investigation.
Nurse Vaught’s actions leading up to the incorrect administration of vecuronium is what distinguishes her conduct from a “typical” medication error and what likely led to criminal charges being filed. After the verdict (perhaps in response to the outcry about the prosecution from healthcare professionals), District Attorney Glenn Funk released a statement detailing the 18 acts that he considered to constitute gross neglect. Most notably, Vaught did not see (or disregarded) four warnings that vecuronium is a paralyzing agent, never visually checked the drug, did not follow the protocol that required her to scan the drug and the patient’s wristband before giving the patient the drug (according to Vaught, a scanner was not available), and, in violation of Vanderbilt’s policy, did not observe the patient after she administered the vecuronium.
In February 2019, more than a year after Vaught’s medication error and the patient’s death, a Tennessee grand jury indicted Vaught on charges of reckless homicide and impaired adult abuse. A grand jury is a group of citizens who decide whether the state has good reason to bring felony charges against a person who is alleged to have committed a crime. The grand jury would have heard evidence that the district attorney presented about Vaught’s conduct and determined whether there was sufficient evidence to make her face criminal charges.
Though he acknowledged that mistakes happen, the district attorney decided to pursue criminal charges because he felt Vaught’s actions – the number of mistakes she made and her decision to bypass fail-safes – were so careless that her conduct rose to the level of criminal conduct. After the verdict, the district attorney stated that he had 30 medical professionals, including expert witnesses, review the case before he sought to have Vaught indicted.
Vaught’s trial began on March 21, 2022. Four days later, the jury found Vaught guilty of criminally negligent homicide and negligent abuse of an impaired adult. She was acquitted of the higher charge of reckless homicide. Notably, the jury included two medical professionals, one of whom was a nurse.
The sentencing for Nurse Vaught was on May 13, 2022. While she could have been sentenced up to eight years in prison, she likely will not serve any prison time.
The day began with testimony offered to assist Davidson County Criminal Court Judge Jennifer Smith in deciding Vaught’s sentence. This included testimony from several of the patient’s family members, character witnesses for Nurse Vaught, and a statement from Vaught. The judge also noted that the court received hundreds of letters, calls, emails, and voicemails in support of Vaught.
Judge Smith sentenced Vaught to serve three years of supervised probation. Vaught received a so-called “diverted sentence.” This means that if she meets the terms of her probation, then she may request that the conviction be permanently expunged from her record.
What Does Nurse Vaught’s Conviction Mean for Nurses?
Undoubtedly you and other nurses identify with Vaught, particularly as you work through widespread staffing shortages. The criminal charges she faced (and her conviction) likely represent your worst fears as you work through a hard job that is made only harder by working longer than usual hours. You and your colleagues have become accustomed to juggling multiple high-stress tasks while being pulled in multiple directions, but now you are expected to handle increased patient loads.
In my experience representing healthcare professionals, I’ve found that mistakes involving medication errors typically are addressed through employer discipline, professional licensing discipline, and/or civil lawsuits. Nurse Vaught faced all of these: Vanderbilt terminated her, the Board of Nursing revoked her license, and Vanderbilt reached a confidential settlement with the patient’s family (though not known, this likely addressed Vaught’s civil liability). The difference for Vaught is that she also faced a criminal prosecution.
Criminal prosecutions are exceedingly rare, and they likely will continue to be. The goal of a criminal prosecution is to protect society and punish offenders. There are few cases that have the facts that will support a prosecutor deciding to bring criminal charges. In Vaught’s case, the district attorney has said that he decided to indict her because he wanted to make sure that the public was safe by ensuring that Vaught could not continue to be a nurse (at the time of the indictment, Tennessee’s Department of Public Health had decided not to pursue any disciplinary proceedings against her nursing license).
This may be cold comfort after hearing what happened to Vaught, but it is important for you and other medical professionals to keep in mind.
What Can Nurses Do to Protect Themselves?
Vaught’s conviction is unlikely to create a sea change in how medical errors are addressed. Continue to practice nursing as the diligent, competent professional you are without concern about criminal prosecution. Nurses are in the best position to advise other nurses about the principles related to medication administration and other nursing tasks. It’s never too late to review the standard of care applicable to your practice and the Nursing Code of Ethics. You also should continue to share coping strategies for burnout and other sources of distraction. Many nurses listen to nursing podcasts, follow nursing influencers, and use social media groups to share therapeutic strategies.
What to Do if You Make a Mistake
Since the verdict, nurses have been posting concerns about whether they should admit mistakes when they make them or should they avoid doing so out of fear that they also will face criminal charges. But hiding or failing to disclose near misses, errors, and adverse events is never the right choice. A culture of silence – whether born of fear or a lack of institutional support – is likely to add more stress to an already stressful job, which could lead to more mistakes. There also is the adage that the “cover-up is worse than the crime” that could come into play if the error is discovered later.
Assume that, despite your best efforts, your actions result in a medical error that causes harm. Don’t panic. Here are some things to keep in mind.
- Address it. You should attempt to stay calm and locate a manager or supervisor who can help.
- Don’t cover it up. You should avoid doing anything that could look like you are trying to hide what you did.
- Make notes. You should write detailed nursing notes and an incident report as soon after the error as possible. The notes should include everything that happened before, during, and after the error. The notes should be based on fact and not on opinion or emotion. You also should avoid justifications in the notes.
- Disclose the error. You should follow your institution’s protocols for reporting the error. You also should participate with its investigation, including any required reports to regulatory and/or other governmental agencies.
- Prepare for interviews. You may be interviewed during your institution’s investigation and/or any regulatory agency’s investigation. Your institution may prepare you for this interview but consider also whether you should retain your own attorney who is familiar with the process to help with your preparation.
- Be consistent. Remember that you are creating a record every time you make a statement. Memories are not perfect, and they fade over time. You should ask to review any written notes, statements, and reports that you prepared immediately after the incident before any interview.
If your licensing board opens an investigation …
Have the right attorney. You should have an attorney represent you at all stages of the investigation and at any disciplinary hearing. Confirm whether your employer’s malpractice insurance policy (or your policy) includes coverage for the cost of that attorney. In any event, you should confirm that the attorney representing you is familiar with licensing board proceedings.
If the patient or the patient’s family files a lawsuit naming you as a defendant …
- Remember the difference between civil and criminal cases. Not all medical errors lead to a civil lawsuit but, when a civil lawsuit is filed, the goal is compensation (in contrast to criminal cases, where the goal is punishment). A judgment in a civil lawsuit may be reported to the board of nursing in your state, but most lawsuits resolve before a trial through a settlement that will be paid by one or more of the malpractice insurers that are involved with the case.
- Notify your employer and malpractice insurer immediately. If you receive (are served with) a complaint and/or other documents that inform you that you’re a defendant in a lawsuit, then you should notify your employer immediately. If you have a separate malpractice policy, then you also should notify your insurer immediately.
- Have the right attorney. After you notify your employer and/or your malpractice insurer, an attorney likely will be appointed to represent you. This attorney likely will be familiar with medical malpractice cases, but if this person is the same attorney who represented you at a disciplinary hearing, then you will want to confirm that this attorney also is familiar with defending civil malpractice claims.
- Consider your interests. If your employer is also a defendant, do not assume that your interests will be the same when it comes time to establish a defense. In many cases your interests will align (you both want to establish that you followed the standard of care), but you should not take this for granted. For example, your employer’s best defense may be to put the blame on you by claiming that its policies and protocols are appropriate, but you did not comply with them.
If the same attorney is representing you and your employer and you have a concern about your interests being different from your employer’s, then you should discuss this with your attorney and request a different attorney to represent you. That attorney, even if appointed by your employer’s malpractice insurer, must represent your interests.
- Talk to Your Malpractice Insurer. If you have a separate malpractice policy, then you should contact that insurer to find out whether it will appoint an attorney to represent you. A separate malpractice policy may have the added benefit of providing another source of money to fund a settlement so that you can avoid a trial.
Assuming a jury decides that you are responsible for all or some of the monetary compensation it awards to the plaintiff, your personal malpractice policy may pay what you owe if your employer’s policy does not pay it. While uncommon, it is possible that your employer’s policy will not pay for what you owe if it is determined that your conduct was so out of bounds that you were not acting within the scope of your employment. Your personal policy also may pay for all or part of what you owe that is left over after your employer’s policy has paid everything it is responsible for paying.
- Cooperate with your attorney. It is very important to stay in touch with your attorney. They will need you to review certain documents before they can file them with the court. Your attorney also will need information from you during the lawsuit. Also, if you do not cooperate with your attorney, then you run the risk of not having insurance coverage to pay for the monetary compensation the jury may decide that you are responsible for paying. Even though the process may be long and stressful, you should do your best not to avoid it.
If the state becomes involved and pursues criminal charges …
- Have the right attorney. A criminal prosecution for this type of conduct is rare. If you have the misfortune of becoming one of those rare cases, then you will need to hire a criminal defense attorney. It is highly unlikely that any malpractice policy will be available to appoint this attorney. Avoid the temptation to hire one of the attorneys who represented you during any disciplinary proceedings or a civil lawsuit. While they may know the facts of your case, you will be best served by hiring an attorney who is familiar with the nuances of criminal practice.
- Consider timing issues. You should discuss with your attorney the timing of the criminal case, any disciplinary hearing, and any civil lawsuit. Any statements or testimony that you provide in one may be able to be used in another.
The Vaught case is tragic. A woman tragically lost her life, and her family lost a loved one. The young nurse who caused that death now has lost her license, went through years of legal battles, and has been sentenced to 3 years of supervised probation. She has talked about the mental anguish she feels daily knowing that she is the reason the patient died.
Nurse Vaught’s criminal prosecution should not lead to another tragedy – nurses leaving an already understaffed profession, one they’ve dedicated their lives to, out of fear that they will be convicted if they make a mistake that harms one of their patients.
At the end of the day, you are a healthcare professional taking care of patients in a system that many are concluding is flawed. I’ve set out some things that you should consider doing to protect yourself after you have made a mistake, but the best defense is a good offense. You can take steps to protect your well-being each day to make sure that you are caring for yourself in addition to your patients. Consider doing a daily mental check-in and working with your colleagues to create a supportive environment. You’ll likely find that when you feel better, you can provide better care to your patients.
Alexis P. Theriault is a litigation attorney at Conn Kavanaugh Rosenthal Peisch & Ford, LLP in Boston. She concentrates her practice on professional liability, complex insurance coverage disputes, and employment law. She can be reached at firstname.lastname@example.orgShare with your network: