When is Negligence a Crime? –The Radonda Vaught Case

Peter Martin, Esq. Jon Barooshian, Esq.

Where On a sCale Of risky behavior does criminal culpability arise?

The case of nurse RaDonda Vaught in Tennessee has given rise to much recent discussion of this question. This nurse was convicted of “criminally negligent homicide” because of a patient death resulting from the nurse’s medication error. She lost her nursing license and has been sentenced to three years’ probation. This matter highlights the complexity of hospital safety systems and the multiple demands on nursing staff. It also raises the question of whether this outcome under Tennessee law could occur here in Massachusetts.

An outline of the events that led to this outcome is short and simple, but a description of the many errors and failures that contributed to it is complex. The day before Christmas, 2017, Charlene Murphey checked into Vanderbilt University Medical Center with a subdural hematoma. By the day after Christmas, she is ready to be discharged, but before she was to leave the hospital, she was to be given a PET scan. She advised a radiology tech that she was anxious and asked for medication. Nurse Vaught was asked to administer Versed, an anti-anxiety medication, but she obtained from the automatic dispensing cabinet (ADC) and administered to Murphey Vecuronium, a paralytic agent. Vaught did not monitor the patient during the PET scan, after which Murphey was found to be unresponsive. She died on December 27, 2017 after being disconnected from a breathing machine.

A root cause analysis of this incident reveals a tangled web of errors, omissions, oversights and inefficiencies that contributed to this tragedy. Just a few of the more significant include the following:

Vaught was the “Help-All Nurse” in the Neuro-ICU at the time, was precepting a new-graduate RN and was preparing to go with the preceptee to the emergency room to conduct a swallowing study when she was asked to help out in the radiology department. Neither Murphey’s primary nurse nor any of the radiology RN’s had time to administer the anti-anxiety medication and Vaught’s assistance was sought in order that the test not be cancelled. The picture painted here is of over-stressed and over-committed nursing staff under pressure to act quickly.

Neither the primary nurse nor Vaught routinely administer Versed. Presumably due to this lack of familiarity, Vaught did not realize that Versed is a liquid and Vecuronium is in powder form. In any event, Vaught did not read the warnings on the front of the label, but concentrated on reading the reconstitution directions on the back of the label. This was undoubtedly negligent of Vaught.

The hospital had begun the process of changing the interface between the ADC and the electronic health record in November of 2017. As a result, nurses were commonly overriding certain functions in order to ensure timely care. Medications are retrieved from the ADC by typing in the first sure timely care. Medications are retrieved from the ADC by typing in the first two letters, which generates a list of possible drugs; in this case, Vecuronium appeared at the top of the list. Vecuronium is not segregated from other drugs in the ADC nor does selection of that drug trigger special screen warnings. Normally barcode scanning is done to confirm the appropriateness of the medication to be administered to a given patient, but Vaught cannot locate any barcode scanning equipment in the radiology department when she arrives in that department to assist Murphey. Had hospital systems been working properly and readily available, designed safety features may have prevented this error.

Because the nursing staff assumed Versed was being administered to Murphey, they agreed that in-person monitoring her during the PET scan was unnecessary. The holding area where Murphey awaited the PET scan was equipped with a surveillance camera. Either form of monitoring, if conducted properly, might have alerted staff to Murphey’s condition before she suffered irreversible brain damage.

Shortly after the incident, Vaught was fired by Vanderbilt University Medical Center. Initially Murphey’s death was reported as resulting from natural causes, the error was not reported to regulators, and the hospital reached a settlement with Murphey’s family. Anonymous tipsters to both state and federal agencies resulted in investigations of both Vaught and the hospital, resulting in Vaught’s indictment and a hospital “plan of correction.” Eventually Vaught lost her nursing license; the Tennessee Board of Nursing found she was guilty of unprofessional conduct, failure to maintain an accurate record of patient care and abandonment of a patient requiring nursing care. The Board sought up to $60,000 in costs in addition to licensure discipline.

Given the number of factors leading to Murphey’s death, not all of which were within Vaught’s control, and the undisputedly unintentional nature of Vaught’s actions, one might think that professional discipline and correction of hospital policies and procedures might have been the end of the story. Why wasn’t it, and could a similar case in Massachusetts lead to a similar criminal proceeding?

The answer is likely yes. Tennessee’s adoption of a criminal negligence homicide statute was enacted in 1989 and replaced the crime of involuntary manslaughter. The Tennessee legislature recognized that culpability for deaths resulting from criminal negligence was not new and had long recognized culpability for such deaths under its involuntary manslaughter statute. In Roe v. State, 210 Tenn. 282, 358 S.W.2d 308, 314 (1962), the Tennessee Supreme Court stated, “Where one unintentionally causes another’s death by conduct not amounting to a felony [malum prohibitum] and not malum in se, but which constitutes gross and culpable negligence, he is guilty of involuntary manslaughter.”

Massachusetts has not yet codified criminal negligence statute, beyond those statutes directed at homicides caused by negligent or impaired operation of a motor vehicle, but the manslaughter statute would likely provide a basis for criminal liability for conduct similar to RaDonda Vaught’s. To find an accused guilty of involuntary manslaughter in Massachusetts, the prosecution must prove that the accused 1) caused the victim’s death; 2) that the accused intended the conduct that caused the victim’s death; and 3) that the accused’s conduct was wanton or reckless.

According to Massachusetts’ Model Jury Instructions, wanton or reckless conduct is conduct that creates a high degree of likelihood that substantial harm will result to another. It is conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences of such conduct. Whether conduct is wanton or reckless depends either on what the defendant knew or how a reasonable person would have acted knowing what the defendant knew.

Because neither Vaught nor Murphey’s primary nurse were experienced in administering versed, it is reasonable to conclude that Vaught would not have known that versed was a liquid and vecuronium is in powder form. To secure a dose of either drug Vaught would have begun typing the name of the drug to be dispensed into the ADC – clearly more could be done here. The question is whether, under the circumstances as a trained nurse, Vaught should somehow have known that she was about to administer vecuronium instead of versed. Was it somehow reckless of her to fail to ignore the pressures of being part of an over-stressed and over-committed nursing staff and take extra time to verify what she was doing? Unfortunately, that question often gets answered by those who may not appreciate the circumstances and pressures of someone in Vaught’s position.

The Massachusetts SJC recognized the difficulty in defining wanton and reckless conduct sufficient to sustain a conviction for involuntary manslaughter when it said, in Sandler v. Commonwealth, 419 Mass. 334 at 337 (1995) that “This court’s recognition of a fictional or constructive intention and this court’s representation that wanton or reckless conduct is different in kind from negligence do not much help in differentiating neatly between negligent conduct (including grossly negligent conduct) and reckless conduct. These concepts emphasize, however, the requirement that reckless conduct must be based on a high degree of risk that death or serious bodily injury will result from a defendant’s action or inaction when under a duty to act.”

Most would agree that there is a high risk of death or serious bodily injury when administering the wrong medication, the question is whether, under the circumstances, doing so was reckless. A jury deciding this case under Massachusetts law could certainly find RaDonda Vaught guilty. The hope, however, is that prosecutors would use their discretion when making a charging decision and focus on whether it was the nurse or the facility that created the problem. +

Peter Martin, partner at Bowditch & Dewey, practices nonprofit and health care law.

Jon Barooshian, partner at Bowditch & Dewey, practices commercial litigation, tax controversy, and criminal law.