Should Medical Errors Be Punished or Forgiven?

David Marx, JD

Disclosures

April 01, 2019

In This Article

To Drift Is Human

Can we judge RaDonda Vaught's choices through the same lens? Were RaDonda Vaught's choices more similar to our driving 9 mph over the speed limit, or to the Corvette driver weaving between lanes, going 40 mph faster than the rest of us?

RaDonda Vaught was training a new nurse, on her way to the ED, helping out an anxious patient having a PET scan—all relatively routine activities for a float nurse. Why would she, in direct view of a nurse she was training, engage in choices she thought to be reckless? Could it be that, throughout this course of events, her risk monitor never fired? Could her decisions and practices on the day she cared for Charlene Murphey be consistent with what she did on many other days? Could it be that her conscious brain never recognized the significant and unjustifiable risk she was taking?

The answer here is yes, if you are open to recognizing our natural propensity to drift into at-risk behaviors.

Our focus should not be on RaDonda Vaught's error but on her apparent drift—obtaining the medication via override, skipping a number of drug confirmations that could have made her error visible, and not remaining with the patient to monitor the drug's effects after it was administered.

Granted, it's easy in hindsight, with a bit of self-righteous indignation, to see RaDonda Vaught's choices as other than at-risk. "Well-meaning humans cannot in good faith choose to violate rules," we might say to ourselves. "It would gut the whole concept of a rule."

Yet, that is the collective "us" on the road where "we" kill 40,000 people per year. If we magically removed drivers who knowingly violate the rules, the roads would be nearly empty.

The same is true in the typical hospital. If we criminally prosecuted every healthcare provider who has knowingly deviated from a safety protocol—skipping hand hygiene or failing to label a syringe—a very large portion of our providers would be in jail rather than providing care.

The propensity to drift is part of our human nature. Along with system design, we believe that it should be the primary focus of a hospital's patient safety program. The inescapable human error is less the issue; at-risk behavior is where our focus should be. That said, it requires some intellectual honesty about our propensity to drift.

The distinction between at-risk and reckless is at the heart of RaDonda Vaught's fate. There is no reckless homicide if RaDonda Vaught's choices were at-risk. Did she, by conscious choice (or developed habit), deviate from safety standards? Yes. Did it creep into her conscious thought that she was taking a substantial and unjustifiable risk with her patient? Was she reckless? Likely not, if we are intellectually honest about how we operate as human beings.

Does she, then, have a chance of acquittal when the entire system finds life easier to live in a state of denial?

It would be up to a jury of RaDonda Vaught's peers, or in this case the criminal jury, to determine whether she was reckless. Recklessness is a reflection of culture, not a proclamation from the king. I cannot proclaim that Vaught's actions were at-risk because I do not live in her local culture, nor do I understand what risks she and her fellow nurses see in their local environment.

Given that, let's say that the jury of her peers finds no recklessness, but instead finds one human error and four at-risk behaviors. Given that, was RaDonda Vaught's conduct still criminal? The answer is yes, unfortunately, according to Tennessee law. Had the prosecutor indicted RaDonda Vaught under the negligent homicide law, it would have only required a showing that RaDonda Vaught should have seen the substantial and unjustifiable risk she was taking. If this were the case, I think criminal negligence would be easy to prove.

Did Vaught make a mistake? Yes. Should Vaught have known she was carrying the wrong drug in her hand? Yes. Like every other state, in the interest of safety, the good people of Tennessee have made both human error and at-risk behavior a crime.

A Key Question: Is Justice Served?

We've been working for over 25 years to help create a more just culture, to reconsider the wisdom of punishing human error and at-risk behavior as legitimate public and human resource policy. We've also been working hard to end our collective reliance on "no harm, no foul" as a meaningful risk management strategy.

In our model of Just Culture, RaDonda Vaught would have likely been consoled around an error and coached around a series of at-risk behaviors. It is unlikely, given the facts that we know today, that RaDonda Vaught did anything reckless.

Unfortunately, as a species, we have a tendency to turn a blind eye to both risky systems and risky choices as long as bad outcomes do not occur. And when a weak system design and an unlucky clinician's choices give rise to harm, we respond with termination of employment and a criminal prosecution. It appears that in the death of Charlene Murphey and the prosecution of RaDonda Vought, we closely fit this pattern.

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