Why criminalising clinical error undermines patient safety

Dr Pallavi Bradshaw,
Deputy Chief Medical Officer, Medicolegal

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The case of RaDonda Vaught, a nurse convicted of criminally negligent homicide and gross neglect of an impaired adult, caused consternation among healthcare workers across the globe. Fellow nurses crowded outside the courthouse in Nashville, Tennessee, last month where Ms Vaught received three years’ probation (comparable to a UK suspended sentence), for administering an incorrect drug to her 75-year-old patient Charlene Murphey.

While she was spared a custodial sentence the ramifications across a workforce already battered and bruised by COVID cannot be underestimated. While prosecutors may feel justice has been served, was it really in the public interest to hold a nurse criminally liable for the death of a patient born from an honest mistake? Aside from the fear that many will leave the healthcare profession there are the blatant and damaging aftershocks which will, I have no doubt, undermine patient safety.

Acting on moral and clinical instinct

Ms Vaught immediately raised the alarm when she realised that she had administered the incorrect drug, a paralysing agent rather than a sedative. Her initial instinct was both morally and clinically appropriate in the hope that something could be done to save the patient. But many are now left questioning whether they would be so open if they made a fatal mistake. 

It reminded me of an incident I was involved in as a trainee on the eye ward one Sunday afternoon. As I was leaving a nurse stopped me while another sat at the nurse’s station crying. A patient had been given ten times the prescribed dose of insulin. The nurse had seemingly misread the chart and the second nurse checking only realised the error once the drug had been given. Thankfully, after insertion of some wide bore cannulas and wise, calming advice from the medical registrar, several very anxious hours later, the patient was OK. I now wonder whether the nurses might have acted differently in the aftermath had they been fearful of personal criminal liability. 

Embedding an open and learning culture

What I found interesting about the US case was that the facility in which it occurred, the Vanderbilt University Medical Center, has long championed a ‘speaking up’ for safety culture – but I fear that this, and other cases like it, will undermine that very principle. Healthcare will only ever get safer if we can embed an open and learning culture, supported by managers, leaders, and our wider society. Singling out and prosecuting healthcare workers for human error while working under pressure in fragile and complex environments, where systems design and ‘alert fatigue’ can set us up to fail, strikes me as cutting off one’s nose to spite one’s face. 

Of course, there needs to be accountability when things go wrong, but it doesn’t always seem to be those responsible for poor systems, processes or management failings who are left facing the music. Ensuring accountability of leadership and management may provide some confidence and assurance to frontline staff. 

Having defended doctors facing gross negligence manslaughter prosecutions, I was often asked why Trusts were not also in the dock for systemic failings which may have contributed to a patient’s death – and my reply was barely convincing, even to myself. It is understandable that many healthcare workers feel scapegoated and have lost faith in the regulatory and justice system. 

Who is responsible?

More should be done to define and implement the responsibility managers and organisations have regarding creating an open and learning culture. Incident investigations must be carried out using human factor principles and expert witnesses; courts and tribunals should also be expected to consider systems and the context of events. If a similar case were to occur in the UK, the police and Crown Prosecution Service must also reflect on whether it is truly in the public interest to investigate and prosecute individual healthcare workers.

Criminalising errors in this way does not act as a deterrent and simply feeds into a blame culture where clinicians fear reprisal which will lead to more preventable harm, rather than less.