“Medical errors” has become a ubiquitous term in recent reporting of medical malpractice. However, for those who work in the health care industry, “medical errors” can mean an infinite number of complex situations resulting in a variety of patient outcomes. At its core, there is a global understanding that such errors lack malice or intent to cause harm. Sometimes these types of errors, otherwise known as negligent acts, are dealt with through the health care entity directly, or through the entity and/or providers’ medical malpractice insurance carriers and subsequent litigation. But what happens when criminal charges for negligent medical care are brought?
That is what happened to Tennessee nurse RaDonda Vaught in a case that recently made headlines nationwide. The patient Vaught was caring for was supposed to be injected with Versed–a sedative that can help patients feel relaxed or sleepy before medical procedures—but she instead injected the patient with vecuronium, a neuromuscular blocking agent, which caused the patient to pass away. Prosecutors argued that the nurse “consciously disregarded warnings and risks when she pulled the wrong medication from an electronic dispensing cabinet that required her to search for the drug by name.” Vaught took responsibility for her actions immediately after the patient suffered cardiac arrest when she realized she may have given the wrong medication and during the subsequent investigation. She also argued that the hospital had flawed procedures that prevented communications between electronic health records and medications, which caused delays, and that medication overrides were an everyday occurrence as a work-around. After a 4-hour deliberation, the jury found Vaught guilty of criminally negligent homicide and abuse of an impaired adult. She will be sentenced in May 2022. Vaught also lost her nursing license in July 2021 after the Tennessee Board of Nursing board initially declined to investigate the incident.
The conviction sent shockwaves through the health care community and fears were ignited that anyone could be held criminally responsible for a medical error. While still extremely uncommon, it is not unheard of here in Wisconsin.
In 2006, a Wisconsin labor and delivery nurse was charged with neglect of a patient causing great bodily harm. The nurse mistakenly gave a pregnant patient an epidural anesthetic when she was supposed to administer an intravenous antibiotic.  Almost immediately after the administration, the patient began seizing and passed away. The child was delivered via cesarean section and survived. The nurse plead no contest to reduced charges and served three years of probation.
The statute that the nurse was charged under was amended in 2011 to include the following exception: “Paragraph (a) 3. does not apply to a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.” See Wis. Stat. § 940.295(3)(a)3(am). Health care provider, in this context, is defined as “any person who is licensed, registered, permitted or certified by the department of health services or the department of regulation and licensing to provide health care services in this state.” See Wis. Stat. § 940.20(7)(a)3. It is the state’s burden to show that that this statutory exception would not apply. See Wis. JI-Criminal 1272.
While the Vaught case is dominating recent headlines, and her sentencing is yet to be determined, it is hard to predict the long-term repercussions of this conviction. The American Nursing Association cited worry over what this conviction could mean for the reporting of future errors and has criticized the charges, stating: “Health care is highly complex and ever-changing resulting in a high risk and error-prone system. However, the criminalization of medical errors could have a chilling effect on reporting and process improvement. The Code of Ethics for Nurses states that while ensuring that nurses are held accountable for individual practice, errors should be corrected or remediated, and disciplinary action taken only if warranted. When error occurs, whether it is one’s own or that of a coworker, nurses may neither participate in, nor condone through silence, any attempts to conceal the error.”
There have also been reports of nurses leaving the profession in fear that they could find themselves in a similar situation to Vaught as the result of an accidental error. However, only time will tell if prosecutors bring more charges involving medical errors. In the meantime, we should continue to advocate that alleged, and even conceded, medical malpractice events only be handled in the venues created for them: directly through the health care entity, malpractice insurance, licensing boards, mediation, and civil litigation. To continue to criminalize our necessary and esteemed health care providers is a slippery slope and dangerous precedent to set.
 The nurse was charged under Wis. Stat. § 940.295(3)(a)3. However, it is important to note that in 2011 the Wisconsin legislature amended this statute to add Wis. Stat. § 940.295(3)(a)3(am).