[music]

Brian Lehrer: Brian Lehrer on WNYC for our last question today, should medical errors ever be criminalized, not just subject to lawsuits seeking damages? A criminal case in Tennessee may have far reaching implications for healthcare workers nationwide. Back in 2017, a nurse at Vanderbilt University Medical Center in Nashville named RaDonda Vaught made a mistake. Charlene Murphey, a 75-year-old patient, was prescribed one drug and RaDonda Vaught gave her another drug. It was a drug mix up and it tragically proved fatal for the patient, Ms. Murphey. Vaught said it was an honest mistake, but prosecutors brought criminal charges against her.

Last month, Vaught was convicted of two felonies and in total she could face eight years in prison. As the weight of the pandemic continues to crush the morale of nurses around the country, this case has left many in the profession angry and concerned. We'll get into the specifics of this case, the reaction from nurses, and the larger implications now with Brett Kelman, correspondent at Kaiser Health News. Brett, thanks for doing this. Welcome to WNYC.

Brett Kelman: Good morning, Brian, happy to be here.

Brian Lehrer: Listeners, we'll open our phones right away to nurses and for others for reactions to this story, and even more broadly, how to weigh the necessity for accountability against the need for a working environment that could hardly afford more pressure. 212 433 WNYC. If you're a nurse or anyone else who wants to call in, 212 433 9692. Help us report this story and nurses will get first priority. What should accountability look like and how adversely might the outcome of this case affect the nationwide shortage of nurses as well as other healthcare professionals potentially? 212 433 WNYC, or tweet @BrianLehrer. Brett, why was this a criminal case and not a malpractice case?

Brett Kelman: Oh, wow, we're starting with a big question. It's really hard to know exactly why the district attorney in Nashville decided to charge this criminally. It is very possible that part of that decision was that initially, the Tennessee board of nursing decided to take no action against Ms. Vaught. After this deadly error, there was a long delay before any authorities knew it had occurred and when they finally found out it had occurred, the traditional discipline system in Tennessee, which is the Tennessee Department of Health and the board of nursing, initially cleared RaDonda Vaught of all wrongdoing.

They sent her a letter saying that she had not violated the tenets of nursing enough to require any discipline. It was not long after that, that the district attorney stepped in with criminal charges, which is obviously a very unusual step in a case like this.

Brian Lehrer: Was there any dispute over whether this was a mistake, plain and simple?

Brett Kelman: I don't believe there's ever been any dispute. I have never heard anyone at any level allege that this was intentional or anything other than a medical error. I think some people have challenged the description of a mistake because they have questioned how negligent can you be and something still be a mistake, but there is certainly no allegation of intent.

Brian Lehrer: There are certainly laws or charges like criminally negligent homicide that we see in other kinds of circumstances. Is that what she got convicted of?

Brett Kelman: Yes, RaDonda Vaught was initially charged with a higher form of homicide, but she was convicted of criminally negligent homicide and another charge of gross neglect, both of which stem from a fundamental allegation of negligence.

Brian Lehrer: Do you know the case well enough to know in what way or ways the jury found her to be negligent and not just, "Oh my God, I picked up the wrong vial," or something like that?

Brett Kelman: Yes, there's a series of acts here that were basically found to be negligent. One, in retrieving the drug that RaDonda Vaught gave to the patient, Charlene Murphey, she had to take a couple of actions. One, she put a medication cabinet into override mode, which allowed her to access drugs that hadn't been prescribed to the patient. Sometimes this was presented in court as a very unusual and reckless act.

If you talk to any nurse, they'll explain to you that it happens all the time in hospitals as part of the regular workflow. RaDonda was then presented with any number of warning signs that she had the wrong drug popups that warned her she was withdrawing a paralytic. She also was supposed to get a liquid medication, but instead pulled a powder and had to reconstitute it.

The arguments were basically that there were so many opportunities for her to catch her mistake that to overlook them all was negligence. I think the final allegation of negligence, which really supported the gross neglect charge, was that RaDonda didn't stay with the patient after administering the drug, which is in most cases a basic tenet of nursing to monitor that patient to make sure they don't have a bad reaction to any drug regardless of which drug you gave them. There's an argument that if this patient had been properly monitored, the drug error would've been caught before it became a fatal one.

Brian Lehrer: Mary in Massapequa Park, you're on WNYC. Hi, Mary.

Mary: Good morning, Brian. Thank you for listening. I'm a long time listener, first time caller. While I agreed that many of the safeguards were skipped by this particular nurse and then some of them, as your guest had mentioned, a lot of times things are overridden. She admitted her error immediately and did try to rectify this. This really sends a chilling effect on all nurses.

We're taught from day one, and I am a very proud Bellevue graduate, I have been a nurse for 53 years. I'm still practicing. The moral issues here are that the nurse admitted her error, so she should not have been charged with a crime. Also, there is some evidence that it's not just this drug, that this person had other issues related to her death and this drug was not directly related to the death.

Brian Lehrer: Thank you, Mary. Thank you. We have other nurses calling in, so I'm going to go take some other calls, but just tell us quickly, Mary, it sounds like you and your colleagues have been talking about this case. This is far away from Massapequa Park down in Tennessee there.

Mary: Yes, we have. I'm very active in the nursing community so I've spoken to nurses all over the country related to this issue. I speak nationally on vaccines, so I've been at a couple of conferences and this is-- while we agree that this nurse made an error, yes, she should have been charged with negligence, but to charge her with a crime is really going way over what should have been done in this particular case. Lose her license, maybe yes, don't permit her to work in nursing anymore, reeducate her, but to put her in jail for something like this when she admitted that she made a mistake is absolutely chilling.

It's going to encourage other health, not just nurses, but other healthcare workers not to admit their mistakes. I can remember from the very beginning when I was a nurse, if I made an error, "Oh my God, I made an error." I wanted to tell everybody, I wanted to rectify it, I wanted it fixed, because we do work under a great deal of pressure and there are errors made, but to send this woman to jail is the wrong thing to do.

Brian Lehrer: It does sound from what you're saying, you do think there was negligence and you do think she should have been held accountable in various ways. You said maybe even lose her license. It's not like you're saying, "Oh, just let it pass."

Mary: No, I absolutely not am saying that. We nurses are very moral people and we put our patients' needs above everything else. I do believe that there should have been some-- I don't like the word punishment, that's the wrong thing, but some kind of recompense, as I mentioned, bringing her up to the state nurses, the board for nursing, put her through a very rigorous review there. If her license should have been pulled, then that should have been done, which would've removed her from nursing altogether, but to put her in jail is just the wrong thing to do.

Brian Lehrer: Mary, thank you so much for your call and good luck out there. The other side from Karen in Brooklyn, an attorney. Karen, you're on WNYC, thank you for calling in.

Karen: Thank you, Brian, for having me. I would just have a couple of points and I think that it's really important, that many people, including many nurses like the one that just called, have gotten the facts of this case wrong and have not looked at the documents, did not see the trial, or watched the trial, so they don't actually understand the facts that this nurse ignored many, many, many warnings that was going on. Also, she was not overworked. She was not understaffed. She was not tired. She did not feel any pressure, and she has said this many times. It was said in documents and in court. This case is not an indictment overall on nurses and doctors, it is an indictment of this nurse who performed very poorly.

Brian Lehrer: Karen, let me jump in for a time and ask you a follow-up question. For you as an attorney, and it sounds like you're interested in this case, even though you're not directly involved in this case, right?

Karen: I am not directly involved. That is correct.

Brian Lehrer: Are there other cases like that, or where is the line in the law that separates negligence that should be dealt with professional repercussions like the previous caller was saying, and one that rises to the level of a crime?

Karen: Right. Good question, Brian. Just one point that the nurse did have her license revoked. Again, people aren't following the case, and aren't understanding and figuring out what's going on. Her license was revoked. That is one punishment. What happened here is how she crossed the line, is that there was a disregard of the standard of care that she needed to such an extent that it crossed the line into criminality, and the prosecutors were able to bring charges.

A jury of her peers unanimously agreed that she had discharged her responsibilities so poorly that criminal charges were in fact necessary for her. For her, not for all nurses. The prosecutors said many times that this was not an indictment of nurses and doctors that make honest mistakes, that sometimes don't get it right. It was not at all. It's just simply an indictment of this woman's behavior and her performance.

Brian Lehrer: Thank you very much for your call. You know we invited nurses to call in, we're getting a lot of nurses, but as it turns out, we're also getting multiple lawyers. Here's Richard, a lawyer in Manhattan, who I think has a different legal point of view than the previous caller. Richard, you're on WNYC. Thank you for calling in.

Richard: Thanks, Brian. I'd like to talk about the indictment from what I understand. This happens in Manhattan. At least in Manhattan, my practice for 45 years, they always over indict a case like this. They over indict by charging a higher crime, probably a murder, or murder in the second degree, and then a lesser crime, which is criminally negligent homicide, knowing they probably can't prove the murder too and that the jury will compromise and go for a lesser charge, which is criminally negligent homicide.

Brian Lehrer: She was convicted of criminally negligent homicide. Are you saying even that was excessive in your opinion?

Richard: Yes, given the facts of this case, how can you go in someone's mind? I totally disagree with your prior caller about her negligence and all that. It's really difficult to prove beyond a reasonable doubt, and the district attorney knows that, so they charged a higher crime, knowing they'll probably compromise on the lesser crime. A classic example of that is someone charged with a robbery, goes into a grocery store, steals a package of meat, starts running out and uses a little bit of force, pushes one of the guards away and runs out, and he's charged with a robbery because he used force.

It's really a shoplift. This happens all the time, especially in Manhattan. Chapter and verse in my practice for 45 years, they do this. There was a chance she may have even been acquitted, had they been honest with everyone and just charged her with criminally negligent homicide.

Brian Lehrer: Thank you, Richard. One more nurse. Kathleen in Manhattan, you're on WNYC. Hi, Kathleen.

Kathleen: Hello.

Brian Lehrer: Hi there. You're on the air.

Kathleen: Oh, hi. I'm calling, I'm president of [unintelligible 00:14:55] Nurses Union here in Manhattan. In our last contract, the hospital agreed to implement a system of just culture. Just culture is a systems analysis to see how and why mistakes were made in order to prevent them from happening in the future. This was key. This was not done in this hospital. The hospital tried to cover up so many issues that it was having internally and a lot of it led to this unfortunate incident. There were mistakes made. There was some reckless behavior on the nurse's part, but it should never have risen to criminality.

Brian Lehrer: Kathleen, thank you very much. I want to play a clip, before we run out of time, of RaDonda Vaught herself because this has broken out as a topic on TikTok. What we're going to hear here is a 40 second clip of TikTok user who goes by TheNurseErica, asking a question, and RaDonda Vaught's reply.

TheNurseErica: What about any message to nursing students or people thinking of going into nursing right now in light of this verdict?

RaDonda Vaught: I would say that that's a valid concern. Just remember why you enter this profession in the first place, why you decided you wanted to go to school to be a nurse. It's a scary place that we work in for a lot of reasons, more than just this, more than just the risk of [beep] so terribly to the extent that you could be responsible for someone's death. There are risks every day in this field.

Brian Lehrer: By the way, TheNurseErica is followed by 376,000 people on TikTok, and I guess that exchange had 7.4 million likes. This has really broken out. We'll get a final word to finish up here from reporter Brett Kelman, correspondent at Kaiser Health News. While you heard all these clips, Brett, what are the longer-term implications of this conviction? 30 seconds.

Brett Kelman: I think we'll find out. Your callers are right. The prosecutor said this was not an indictment of the entire nursing profession, but I'm not sure if that decision is entirely up to them. We will see what happens in nursing as a result of this case, and we might feel the impacts in hospitals and in courtrooms.

Brian Lehrer: Brett, thanks for coming on. I appreciate it.

Brett Kelman: Thanks for having me on, Brian.

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.