Thursday, March 31, 2022

The Criminalization of Safety in Healthcare?

On March 25, 2022 a former nurse at Vanderbilt University Medical Center (VUMC) was convicted of gross neglect of an impaired adult and negligent homicide as a consequence of a fatal drug error in 2017.* 

Criminal prosecutions for medical errors are rare, and healthcare stakeholders are concerned about what this conviction may mean for medical practice going forward.  A major concern is practitioners will be less likely to self-report errors for fear of incriminating themselves.

We have previously written about the intersection of criminal charges and safety management and practices.  In 2016 Safetymatters’ Bob Cudlin authored a 3-part series on this topic.  (See his May 24, May 31, and June 7 posts.)  Consistent with our historical focus on systems thinking, Bob reviewed examples in different industries and asked “where does culpability really lie - with individuals? culture? the corporation? or the complex socio-technical systems within which individuals act?”

“Corporations inherently, and often quite intentionally, place significant emphasis on achieving operational and business goals.  These goals at certain junctures may conflict with assuring safety.  The de facto reality is that it is up to the operating personnel to constantly rationalize those conflicts in a way that achieves acceptable safely.”

We are confident this is true in hospital nurses’ working environment.  They are often short-staffed, working overtime, and under pressure from their immediate task environments and larger circumstances such as the ongoing COVID pandemic.  The ceaseless evolution of medical technology means they have to adapt to constantly changing equipment, some of which is problematic.  Many/most healthcare professionals believe errors are inevitable.  See our August 6, 2019 and July 31, 2020 posts for more information about the extent, nature, and consequences of healthcare errors.

At VUMC, medicines are dispensed from locked cabinets after a nurse enters various codes.  The hospital had been having technical problems with the cabinets in early 2017 prior to the nurse’s error.  The nurse could not obtain the proper drug because she was searching using its brand name instead of its generic name.  She entered an override that allowed her to access additional medications and selected the wrong one, a powerful paralyzing agent.  The nurse and other medical personnel noted that entering overrides on the cabinets was a common practice.

VUMC’s problems extended well beyond troublesome medicine cabinets.  An investigator said VUMC had “a heavy burden of responsibility in this matter.”  VUMC did not report the medication error as required by law and told the local medical examiner’s office that the patient died of “natural” causes.  VUMC avoided criminal charges because prosecutors didn’t think they could prove gross negligence. 

Our Perspective

As Bob observed in 2016, “The reality is that criminalization is at its core a “disincentive.”  To be effective it would have to deter actions or decisions that are not consistent with safety but not create a minefield of culpability. . . .  Its best use is probably as an ultimate boundary, to deter intentional misconduct but not be an unintended trap for bad judgment or inadequate performance.”

In the instant case, the nurse did not intend to cause harm but her conduct definitely reflected bad judgment and unacceptable performance.  She probably sealed her own fate when she told law enforcement she “probably just killed a patient” and the licensing board that she had been “complacent” and “distracted.”   

But we see plenty of faults in the larger system, mainly that VUMC used cabinets that held dangerous substances and had a history of technical glitches but allowed users to routinely override cabinet controls to obtain needed medicines.  As far we can tell, VUMC did not implement any compensating safety measures, such as requiring double checking by a colleague or a supervisor’s presence when overrides were performed or “dangerous” medications were withdrawn.

In addition, VUMC’s organizational culture was on full display with their inadequate and misleading reporting of the patient’s death.  VUMC has made no comment on the nurse’s case.  In our view, their overall strategy was to circle the wagons, seal off the wound, and dispose of the bad apple.  Nothing to see here, folks.

Going forward, the remaining VUMC nurses will be on high alert for awhile but their day-to-day task demands will eventually force them to employ risky behaviors in an environment that requires such behavior to accomplish the mission but lacks defense in depth to catch errors before they have drastic consequences.  The nurses will/should be demanding a safer work environment.

Bottom line: Will this event mark a significant moment for accountability in healthcare akin to the George Floyd incident’s impact on U.S. police practices?  You be the judge.

For additional Safetymatters insights click the healthcare label below.


*  All discussion of the VUMC incident is based on reporting by National Public Radio (NPR).  See B. Kelman, “As a nurse faces prison for a deadly error, her colleagues worry: Could I be next?” NPR, March 22, 2022; “In Nurse’s Trial, Investigator Says Hospital Bears ‘Heavy’ Responsibility for Patient Death,” NPR, March 24, 2022; “Former nurse found guilty in accidental injection death of 75-year-old patient,” NPR, March 25, 2022.