Author Archives: Sarah Fontenot

When Killing Isn’t Criminal: The RaDanda Vaught Case

On December 26, 2017, Nurse RaDonda Vaught received an order to administer a medication [Versed] to Charlene Murphey, a 75-year-old patient scheduled for a PET Scan at Vanderbilt Hospital. Versed is a sedative that would help Ms. Murphey, who was claustrophobic, endure lying within the large scanning device. Tragically, Ms. Vaught retrieved the wrong medication from the drug distribution system. What she gave Ms. Murphey was a paralyzing drug [Vecuronium], which caused cardiac arrest, brain injury, and the death of Charlene Murphey the following morning.

To give Ms. Murphey Vecuronium, RaDonda Vaught had to override the electronic drug distribution system multiple times and ignore other red flags, including a warning printed on the vial as she prepared the shot. She also failed to monitor her patient after injection and did not realize her error until Ms. Murphey went into cardiac arrest.

Vanderbilt University Hospital fired RaDonda Vaught on January 3, 2018, and the Tennessee Board of Nursing revoked her nursing license in September 2019. Ms. Vaught has consistently expressed her responsibility and remorse for this horrific error. [The most detailed review I could find of all the events surrounding this case is available here.]

This is a sad (and scary) story of what can happen within a hospital. What makes it the topic of this Fontenotes is that RaDonda Vaught was arrested on February 4, 2019, for her role in Ms. Murphey’s death and was convicted by a Nashville jury for criminally negligent homicide and gross neglect of an impaired adult last month (March 25th). Her sentence hearing is on May 13th (possible jail time is 8 years; she is currently out on bail). As of March 29th, Ms. Vaught had not decided if she would appeal her conviction.

The Nashville District Attorney’s Office transformed a clear negligence case into a criminal matter. That should concern all of us; I want to explain why.

We Have Two Legal Systems

Following the design we inherited when we adopted the British legal structure as colonies, our legal system includes two broad categories of law for two different sets of issues:

  • Those that are meant to punish parties that have violated written rules (statutes, ordinances, legislation) established by the government (federal, state, municipal) prohibiting particular behavior (such as espionage, robbery, malicious driving) in Criminal court,
  • Those that involve disputes between private parties where the losing party is ordered by the court to pay damages to the other party in an attempt to redress the injury they caused (Civil court).

There are differences between Civil and Criminal proceedings in the standard of proof, procedure, decision making, and more, as outlined in this quick, practical resource.

When a person injures another because they fail to exercise reasonable care in performing a function that presents a foreseeable risk of injury to the other (such as driving while texting, allowing a known hazard to exist in a business- a wet floor, an open staircase, perilous wiring- or failing to restrain a dog with known violent tendencies) they can be sued for negligence by the injured party in Civil court.

When a doctor, nurse, or other health care professional injures a patient through a negligent act (such as a removing the wrong kidney in surgery) or failure to act (such as not prescribing necessary medication), the injured patient (or their estate) can sue the health professional and/or hospital for Medical Malpractice (negligence) in Civil court.

Medication Errors Have Known Risks- and the RaDonda Vaught Case Demonstrates Most of Them

Medication errors are a well-known risk throughout our healthcare system; a 2013 study found 1 in 5 medication doses were administered incorrectly (fortunately, the majority were errors in timing, and most did not injure the patient). Any drug administered to a patient must go through a complex medical use process involving physicians, pharmacists, pharmacy technicians, the patient record, and the nurse delivering the medication.

Medication errors are one of the most common negligence claims against nurses. Accordingly, a significant emphasis in nursing education and practice is to ensure that every nurse implements proper medication administration.

Known common causes of nursing errors in medication administration include similar drug names (Ms. Vaught entered “VE” into the medication system, which brought up Vecuronium, not the ordered Versed) and distractions at the time of administration (Vaught admitted to being “distracted” while searching for the medication because she was training an orientee nurse).

Over the last decades, significant research and funding resulted in multiple uses of technology to make the medication process safer, including barcode scanning to match a patient’s ID band with the medication (there wasn’t a scanner in the imaging area for nurse Vaught to check the drug against Ms. Murphey’s armband)electronic prescribing to increase accuracy and avoid handwriting errors, and automated medication dispensing systems that deliver a patient’s medications to a nursing unit in a secure, safe manner (the dispenser at Vanderbilt at the time required frequent overrides to dispense medications; testimony at trial revealed that in her three days in the hospital20 cabinet overrides were needed to provide care for Charlene Murphey, including the one involved in Ms. Vaught’s error that killed her.)

Medical Malpractice and Licensing Actions in Response to Negligence

A. Medical Malpractice
Being injured while seeking medical care or seeing your loved one hurt or killed is as horrendous an event as we can imagine outside of the criminal world; ghastly violence and death are rampant in criminal law. However, unlike an unknown criminal, when the person who hurts you or a loved one is a trusted doctor, nurse, or hospital, the violation of the faith you extended to the health care community compounds your pain. But it still isn’t a criminal matter.

Medical malpractice claims establish, before a jury, that a health care professional or institution broke their duty to deliver the requisite standard of care and that their negligence, although not intentional, created harm. Sometimes it is unimaginable harm, such as the unnecessary death of a loved one.

In medical Malpractice, the monetary damages awarded to the injured party attempt to compensate them for their loss; in cases of carelessness or gross negligence, there are additional financial penalties against the health care provider.

No one truly believes an award of money will replace a child, mother, or husband. Still, the trial acknowledges the injury, attempts to monetize the loss, and encourages providers to reduce risks to prevent future negligence and penalties.

This is not to say that health care professionals avoid mistakes because they are concerned about damages; they work to avoid errors because harming people in their care is not why they signed up in the first place.

To hurt a patient through negligence is devastating to the health professionals involved; a case like RaDonda’s is a nurse’s worst nightmare. (I know. In 1979, deep in the night shift on the Neurology floor of Mass General, I gave my patient the wrong shot; I had two in my hand and made a terrible mistake. My patient wasn’t harmed by the error other than receiving an unnecessary medication. Yet to this day, it haunts me how easily I made that error and how much damage I could have done.)

It is understandable and predictable that the family of Charlene Murphey sued Vanderbilt Hospital. The parties negotiated an out-of-court settlement for an undisclosed amount; the agreement includes a prohibition on the family speaking about the case publicly (which is standard in settlements). [Source]

B. Licensing Actions
Separate from any medical malpractice litigation, it is not uncommon for licensing entities to question if a provider should be allowed to continue to care for patients. As I said above, the Tennessee Board of Nursing revoked RaDonda Vaught’s nursing license in 2019. She lost her career.

Hospital licensing and questions about participation in Federal programs such as Medicare also frequently follow patient injuries. Still, as of March 24th, Vanderbilt hospital has “received no punishment for the fatal drug error.” [Quote] (There is a crucial part of this story I’m not addressing that involves the initial reaction of Vanderbilt Hospital to Ms. Murphey’s death, an anonymous tip leading to an investigation by CMS and the Tennessee Department of Health, and the firing of Nurse Vaught, all of which were brought up in testimony. For more, I recommend this KHN Report here).

I’m Not Excusing Murders in Our Midst

I want to clarify that I am not arguing that a medical malpractice trial is appropriate for all health care deaths. Physicians and nurses have intentionally murdered patients. Here are some famous examples:

  • Donald Harvey, Who Killed Dozens of Hospital Patients, Dies at 64 [Link]  Dr. Harvey killed patients with poison- rat poison, cyanide, petroleum distillate, etc., or smothered them. He admitted to killing 37 patients at his trial in 1987, but by his own estimate, he probably killed at least 70.
  • How a murderous doctor was allowed to keep killing patients [Link] Dr. Swango killed at least 60 with poison and medications that paralyzed or caused heart failure. He was sentenced in 2014.  Prosecutors Say Doctor Killed To Feel a Thrill [Link] Here is a quote from Dr. Swango’s personal notes: ”I love it. Sweet, husky, close smell of an indoor homicide.”
  • Prosecutors Race to Keep Notorious Angel-of-Death Behind Bars [Link] Genene Jones was an LVN sentenced in 1987 for murdering 42 kids in Bexar County [San Antonio]. As she approached the end of her sentence in 2017, there were additional charges brought to attempt to prevent her release from jail: Suspected Texas Serial Killer Charged With Death of Second Baby [Link]
  • If you can stand more, Do Doctors Make Better Serial Killers? [Link] is another resource reviewing some other famous physician serial murders.

Criminal liability depends on intent, as demonstrated in the recent acquittal of a former Ohio physician accused of ordering excessive levels of fentanyl in treating 14 ICU patients between 2015 and 2018, all of whom died. (The ordered doses “were 10 times the amount of fentanyl that expert witnesses said was the norm in nonsurgical settings” [Quote]) The jury was unable to agree with the State’s allegation that Dr. William Husel ordered the fatal doses with the intent to hasten the death of the 14 critically ill patients (apparently, there were also questions if the medication caused the deaths). [Source] The State Medical Board of Ohio suspended Mr. Husel’s license in 2019; he let it expire in 2021. [Source]

I hope my point is clear- none of these criminal cases is even arguably close to what occurred the night Nurse RaDonda Vaught made her fatal error.

Why You Should Care About the RaDonda Vaught Case

Beyond concern for what may happen to RaDonda Vaught at her sentencing on May 13thwe all should worry about the implications of this case on future efforts to make healthcare safer and the impact Ms. Vaught’s trial is already having on the field of nursing.

A. Making Health Care Safer
We have known since the pivotal 1999 IOM Study To Err is Human that errors plague our health care system, and from the subsequent IOM Report Crossing the Quality Chasm (2001) that a non-punitive, confidential error reporting system (similar to the reporting of flight errors within the FAA) supports identification, system changes, and alleviation of risks, and ultimately makes health care safer for us all. Belief in the positive effects of a federal medical errors reporting system is the foundation of the Patient Safety Quality Improvement Act [PSQIA], promoted and signed by President George W. Bush in 2005.

The Vaught case jeopardizes all of that.  As stated by Linda Aiken, a nursing and sociology professor at the University of Pennsylvania: “One thing that everybody agrees on is [the Vaught conviction] is going to have a dampening effect on the reporting of errors or near misses, which then has a detrimental effect on safety,” Aiken said. “The only way you can really learn about errors in these complicated systems is to have people say, ‘Oh, I almost gave the wrong drug because …'” [emphasis added] [Source, quote]

B. Losing Nurses
Equally important (if not more) than whatever happens to our hospitals’ systematic approach to risk management, who will be there ready to take care of us and our loved ones?

The last two years with Covid 19 have created waves of nursing and other staffing shortages across the country [Source]. Two weeks ago in Health Affairs Forefront, a report demonstrated a decrease of 100,000 nurses in America in one year (mostly from hospital settings). Even more alarming, the same study revealed the reduction is steeper among nurses under 35 (four times the rate of decline among nurses over 50). Nursing, as a profession, isn’t replacing itself.

Nurses everywhere are watching the RaDanda Vaught trial. After hearing the verdict, nurses quickly added their names to the 160,503 nurses already on the Facebook petition titled “Grant Radonda Vaught Clemency.”

Anecdotally, some nurses are using the trial as the reason to leave nursing entirely.  [Source] Janie Harvey Garner, a St. Louis registered nurse and the originator of the Facebook petition, explains: “This could be me. I could be RaDonda.” [quote] Nurse Garner said to NPR“Health care just changed forever. You can no longer trust people to tell the truth because they will be incriminating themselves.”

After the verdict, the American Nurses Association [ANA] and Tennessee Nurses Association [TNA] released a joint statement, which reads, in part:

“We are deeply distressed by this verdict and the harmful ramifications of criminalizing the honest reporting of mistakes… The nursing profession is already extremely short-staffed, strained and facing immense pressure – an unfortunate multi-year trend that was further exacerbated by the effects of the pandemic. This ruling will have a long-lasting negative impact on the profession.” [emphasis added]

The complete statement from ANA and TNA is available here.

The Director of the Center for Communication and Health at Northwestern University and patient safety expert Bruce Lambert sums up the potential implications of the Vaught trial: “This will not only cause nurses and doctors to not report medication errors, it will cause nurses to leave the profession.” [Quote]

Yes, Physicians are watching too.

Beware Your Mistakes

I am fully aware that there may be readers who still believe that RaDonda Vaught deserves whatever penalty she receives from the Criminal court; that jail is the appropriate consequence for an egregious, fatal medical error. And I agree this is a challenging situation; none of us would readily accept the death of someone we love, or even a stranger.

It may feel good at the moment. It may score political points for a local District Attorney. But if medication errors are lifted out of the Civil system where they belong, what is next? Workplace injuries? Defects in your home that injure a guest? Motor Vehicle Accidents (stress on the word “accidents”)?

Beware of the criminalization of human error.

Want to Know More

I have an update on my review of the No Surprises Act and the debate over how arbitration of an out-of-network bill will be negotiated between the provider and the patient’s insurance company [see Fontenotes No 115 “Who Loses Under the No Surprises Act” ] When I published on February 10th the legal challenge from Texas Medical Association [TMA] against the Final Rule released by the Biden Administration was still pending.

On February 23rd, the U.S. District Court sided with TMA and vacated the portion of the No Surprises Act Rule that bound the arbitrator to the payer’s median contracted rate [the QPA”] as a benchmark (all the other portions of the Rule, such as Notice and Consent, remain the same). In response, CMS issued new guidance on April 12th , removing any presumption in favor of the QPA and listing a number of factors to be considered while resolving out-of-network billing disputes. This “Baseball” approach will likely provide more “wiggle room” to increase payments to out-of-network providers.

Readers should be aware the TMA challenge was one of six lawsuits springing from the September Final Rule for the No Surprises Act, so the roller-coaster ride over the arbitration process isn’t over yet! In the meantime, another “Final Rule” is anticipated from CMS this summer.