Should Medical Errors Be Punished or Forgiven?

David Marx, JD

Disclosures

April 01, 2019

In This Article

Should There Be a Criminal Prosecution?

Let's examine the justice of RaDonda Vaught's criminal prosecution. We'll focus on three provisions of the Tennessee criminal code related to unintended outcomes: two related to recklessness, the third related to negligence.

Reckless Endangerment, Reckless Homicide, Criminally Negligent Homicide

The first law is Tennessee's codification of the natural law principle of not putting fellow humans at imminent danger of serious bodily injury or death. It's called reckless endangerment, and in Tennessee it is a misdemeanor, carrying with it a fine and prison sentence not greater than 11 months, 29 days. Reckless endangerment is a common provision across criminal codes, with modern society having moved beyond the frontier days when drunken cowboys could leave the saloon with guns firing into the air, merely for their own amusement.

The second provision is similar, except that in this case, the reckless conduct causes death. Tennessee calls this reckless homicide, a felony carrying the penalty of a hefty fine and 2-12 years in prison. In a classic display of severity bias, the people of Tennessee say that if we are unlucky enough in our reckless conduct to actually kill someone, the maximum penalty will be enhanced from serving up to 1 year in prison to serving up to 12 years in prison.

The third and final law is called criminally negligent homicide, a felony carrying a penalty of 1-6 years in prison. Negligence is a lesser crime than recklessness, as we'll explore in a bit.

Now, what do the people of Tennessee mean by the terms recklessness and negligence? Recklessness, simply, is the conscious disregard of a substantial and unjustifiable risk. It is seeing, in the conscious part of our brain, a substantial and unjustifiable risk, and with that knowledge, choosing to follow through with our conduct. Negligence, in contrast, is the failure to see a substantial and unjustifiable risk that we should have seen. In recklessness, we ignore the risk we see; in negligence, we don't see the risk that we should have seen.

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