Medical Error Shouldn't Be a Criminal Act: Here's What's Better

Arthur L. Caplan, PhD


May 18, 2022

Editor's Note: This commentary was recorded before nurse RaDonda Vaught was sentenced to probation in the death of one of her patients.

This transcript has been edited for clarity.

Hi. I'm Art Caplan. I run the Division of Medical Ethics at New York University's Grossman School of Medicine.

Much in the news over the past couple of months is the fate of a nurse who, at one of the most prestigious hospitals in Nashville, Tennessee, made a terrible blunder that resulted in the death of a patient. She meant to pull a particular drug from an electronic medication cabinet. I think she was looking for Versed. She got the wrong drug. She pulled out vecuronium, which is a powerful paralyzer. It stopped the patient's breathing when they went in for a scan, and the patient died.

The district attorney decided that RaDonda Vaught was going to be prosecuted for this error, and she was basically convicted and faces prison because of the mistake. This set off a big backlash from the nursing community and the physician community about the inappropriateness of prison sentencing for medical mistakes.

I have empathy for that, partly because the reason that we institute a system for handling mistakes is... That's what malpractice is. That's what insurance is. We know that mistakes will occur, and we don't set people off to jail unless they're deliberately negligent or culpable, they come in impaired, they leave their shift early, or leave a patient abandoned.

There are very few circumstances where somebody is going to make a culpable error, but in many instances, it's a system failure. It's too hard to read something; people are overworked or rushed; people just making an honest error in giving the wrong amount of a drug, misreading something; and so on.

I don't think prison time is the right way to go about dealing with errors, but I am very frustrated that medicine seems unable to come up with the right response, which isn't arguing about whether you should go to jail if you make it a prescription error. Rather, what system could we set up to make sure that near misses and almost accidents are diminished?

The place to turn for this answer is to the Federal Aviation Administration, the FAA. When there's a plane crash, they show up and examine what happened. They try to determine if it was pilot error or mechanical failure, what went wrong in the system, or whether it was an air traffic control mistake. All of their investigations cannot be used in prosecution.

Moreover, they extend in a very interesting way to try and avoid errors and mistakes. They don't want to just show up at crash scenes. They want to make sure that if there is a near miss, they know about it.

They encourage people — and by the way, NASA does this too — to anonymously report near misses. They try to investigate them. They keep the reports anonymous. They cannot be subpoenaed or used in any way to prosecute anybody. They try to make reforms in aircraft or space flight safety so that mistakes are, if not eliminated, at least greatly reduced.

At the end of the day, you don't want to prosecute people after the fact for a medical mistake but you want to prevent the mistake. The way to do that is to create a system just like we have in the air travel and space sectors. We need a national agency that can come in and examine, without legal consequences, what took place.

By the way, you can still sue as a patient. You just can't use the investigative evidence as part of your lawsuit. It has to happen separately — if you want to try and collect malpractice or say that there was misconduct.

We need a system that will take the anonymous reports and come in and check — obviously, there may be far too many for any single agency to do — at least some percentage to see any system errors, system flaws, and what's going on with respect to day-to-day practice that could be helped.

The goal is to encourage people to feel confident that they can talk about near misses, near mistakes, things that could have led to harm to patients without penalty and without fear. We need to make sure that there's a competent group that can come in and make suggestions on how to prevent those mistakes.

We seem to have done it in the airline industry. We ought to be doing it in the healthcare industry.

I'm Art Caplan at the Division of Medical Ethics at New York University's Grossman School of Medicine. Thanks for watching.

Arthur L. Caplan, PhD, is director of the Division of Medical Ethics at New York University Langone Medical Center and School of Medicine. He is the author or editor of 35 books and 750 peer-reviewed articles as well as a frequent commentator in the media on bioethical issues.

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